Thursday, August 15, 2013

Probate and Estate Administration - FAQs

What is probate? A court procedure by which a will is proved to be valid or invalid. The term is now understood more broadly to include all matters that entail the administration of estates, guardianships, etc.

What are the advantages of having a will? There are least two advantages to having a will. One, you can give your property away as you want to; if you die without a will, a statute that is part of the Probate Act dictates how the property will be given away. Two, the cost of the premium of a surety bond can be avoided by stating in the will that the executor need not provide security for his/her bond.

What is an executor? A person named in a will to carry out the directions and requests set out in the will. When there is no will, the person who performs this work is called an administrator. The tasks are essentially the same: Open the estate, publish notice, collect the assets, pay the debts, distribute what's left (if anything) to the beneficiaries or the heirs, and close the estate.

Can probate be avoided? Yes, if the estate is small enough (gross value not more than $100,000.00) and some other requirements are met, then in lieu of probate, a so-called small estate affidavit can be prepared and submitted to those who have property of the decedent, and the bills can be paid and the remainder distributed without going through probate. Details about the affidavit appear at 755 ILCS 5/25-1.

What can I do if I am an heir and believe my interests are not being protected? You can ask the court for "supervised" administration of the estate, which would then require the executor or the administrator to seek and obtain the court's permission before taking any action of consequence.
Probate Resources

Sunday, August 11, 2013

The BIG Three

The value of a personal injury case - its "settlement value" and its "verdict value" - depends upon the extent to which it possesses three elements:

(1) clear-cut liability,
(2) big damages, and
(3) a solvent defendant.

Damages are of two types: special damages (e.g., medical expenses and lost earnings) and general damages (pain and suffering, disability, disfigurement). In this article the term "big damages" refers to special damages. We know of one case that settled for $6,000.00 although the special damages were confined to a doctor's bill of $25.00, but that almost certainly reflected a determination on the part of the defendant that it made more sense to pay to settle the case than to defend it. As a rule there is a closer correlation between special damages and settlement value. Or to put it another way, a case that entails a $500.00 bill for two-hour trip to the emergency room is not going to support a million-dollar settlement.

A case that possesses all three elements will look like this: Kathleen was a passenger in a car that had stopped for a red light on a clear, dry, sunlit day. A cement mixer owned and operated by a Fortune 500 company rammed into the back of her car. The car was totaled. Kathleen was knocked cold and suffered severe cuts to her face. She was brought by ambulance to a hospital, spent several days in the hospital, and followed up with her doctor on several subsequent occasions. The loss of consciousness implies the prospect of future complications, future medical expense, future pain and suffering. The facial cuts signal disfigurement. Kathleen was retired, and so lost wage was not an element of her case.

A lawsuit was filed. The defendant conducted basic discovery: served interrogatories, collected documents, and took the deposition of Kathleen. Then it invited her to mediation and the case settled for $70,000.00, ten times the amount of Kathleen's medical bills.

In that case, the defendant was solvent and well insured. The liability of the defendant was clear. There was no comparative fault on the part of Kathleen. The special damages were substantial and consisted entirely of readily provable medical expenses. 

Each case below represents a personal injury case lacking one or more of these ingredients:

Case 1: A case recently brought to our attention entailed an attack upon a young man in a parade by a spectator. Liability was clear enough: The unprovoked attack occurred in the presence of many witnesses and produced an arrest. But the would-be defendant was barely employed and uninsured. As for the potential plaintiff, he suffered a facial cut that required four or five stitches, was treated and released from the emergency room, and was looking at a follow-up visit or two with the family doctor. (Lacks big damages and solvent defendant.)

Case 2: Some years ago, a client we will identify as Samantha, a single, attractive, twenty something woman suffered severe facial cuts when she went through the windshield of a car when the driver lost control. He had minimum insurance coverage and no prospects. His insurer quickly offered the limits of his policy, and the adjuster openly acknowledged that those limits fell far short of full compensation. But the driver had no other assets of consequence and the obligation of his insurance company was capped at the limits of his insurance. (Lacks solvent defendant.)

Case 3: A plaintiff who suffered a career-ending knee injury in a truck jackknife attributed the occurrence to faulty brakes on the tractor he was driving and the trailer he was pulling. His co-driver had left this area and taken up residence in a god forsaken corner of a far-away state. But we found him. And we took a statement from him. By his account, there was nothing wrong with the brakes. It was all about black ice. The settlement demand plunged by ninety percent. (Lacks clear-cut liability.)