New Year + New Laws = Outdated Estate Plan

Sivia Law

Todd Sivia, Managing Partner, Sivia Business & Legal Services

As 2016 begins, we reflect upon the joys and challenges we faced throughout the past year. Unfortunately, many people overlook how these joys and challenges affect estate planning. Often, the events that shape our lives the most also influence how we would want to take care of our loved ones. For example, have you experienced changes such as these in 2015:

  • Birth or adoption of a child or grandchild
  • Child turned 18
  • Divorce or marriage
  • Change in named guardians, beneficiaries, trustees or personal executors
  • Approaching age 70
  • State-to-state move
  • Own your own business

Of course, even if you haven’t had any major changes take place in your life, it is still a good idea to have your estate plan reviewed every three years. Laws change periodically so it is important to find out if any legislative revisions impact your estate plan. After all, an out-of-date can add to the stress and pain affecting loved ones during a difficult time.

It is important to us that our clients are always prepared for the unexpected. If you wish to set up a review of your current estate plan or establish a new one, our firm is offering you a free estate planning consultation now through January 31, 2016. You can reach our office at 618-659-4499 or email us at info@sivialaw.com. In the meantime, check  our free Estate Planning Resources Page here.

We hope you transition into 2016 knowing you have safeguarded your loved ones from unintentional consequences through intentional planning.

Happy New Year!

 

 

 

What is Probate?

Sivia Law

Todd Sivia
Managing Partner, Sivia Business & Legal Services

Probate process is often misunderstood. Probate is basically the process of administering the will of a deceased person. The process includes resolving any claims, paying remaining debts and the distribution of property.

It can also be costly and time consuming—and completely avoidable.

  1. What Is Probate?

Probate is a court process required when you are unable to manage your affairs. It involves a lot of paperwork and court appearances (i.e. lawyer fees). All of these costs are paid from the estate—monies that would otherwise go to the beneficiaries.

Probate is also a public process. Therefore, all of your assets, as well as their estimated value, become a part of the public record.

  1. Can I Avoid Probate If I Have a Will?

No. A will is merely a guide map directing assets through probate process.

  1. How Can I Avoid Probate?

The only way to avoid probate is to ensure all of your assets, upon your death, will automatically pass into an alternative to a will. A living trust, for example, holds title to all assets or the assets automatically pour into the trust upon death, thereby circumventing the probate process.

In the case of disability, you may eschew probate by legally authorizing a proxy with regards to property and/or health decisions. Examples of legal means to avoid probate in the face of a disability include financial power of attorney, healthcare power of attorney, and coordinated living trust.

  1. Is Probate Expensive?

Absolutely. Probate can be a complicated process so most people hire and attorney—which can cost $2,000-$5,000 for a simple estate. For estates exceeding $100,000, the costs can be between $5,000-$10,000. Why? The executor must be paid. The probate case has to be filed with the state and the filing fee is typically around $300. Probate cases must be published in the local newspaper, so publishing costs are also incurred by the beneficiaries.

And since the details of the estate do become public, there is also an increased likelihood that someone will come forward to contest the will. Should that occur, the attorney’s time and your expenses would also increase.

The good news is that probate is avoidable with proper planning. Yes, a good estate plan will cost money. But it pays for itself several times over in the long run. If you have questions regarding the probate process or estate planning, you can contact me at 618-659-4499 or by email at info@sivialaw.com. You can also learn more about our estate administration and probate services online at www.sivialaw.com/estateplanning.html.

Don’t Make an ‘Uber’ Mistake: Understand the Difference Between Employee & Independent Contractor

Sivia Law

Todd Sivia
Managing Partner, Sivia Business & Legal Services

Ride-share giant Uber is currently facing a labor law suit by former freelance workers, claiming they were “employees” and not, as Uber categorized them, “independent contractors.”

This is a distinction that often vexes business owners. There are significant tax benefits to employers that hire independent contractors instead of traditional employees. However, claiming your workforce consists of independent contractors when they are, in fact, employees can cause headaches with the IRS.

But what are the differences between an employee and an independent contractor?

According to the IRS, anyone who performs services for an organization is an employee if the organization can control what will be done and how it will be done. Specifically, if an organization decides 1) a defined wage or salary, 2) an implied or written contract and 3) maintains control of the person’s work by the employer, then the worker is an employee. This applies even if the individual is given “freedom of action.”

By contrast, a worker is an independent contractor “if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done.” Independent contractors do NOT have the legal right to control the details of how the services are performed.

There is often a fine line between the two, but the wrong choice can cost your business thousands of dollars in taxes and legal fees. If you are unsure where your staff falls, contact me at 618-659-4499 or info@sivialaw.com.

As for Uber, it will be interesting to see what the federal court will decide. Think about this: the Uber Driver Terms & Conditions states, “You will not, in your use of the Services, cause nuisance, annoyance, inconvenience, or property damage, whether to the Third Party Provider or any other party.” Given the definitions mentioned above, who do you think is right?

Top Tips For Preparing a Personal Injury Case

Todd Sivia Managing Partner, Sivia Business & Legal Services

Todd Sivia
Managing Partner, Sivia Business & Legal Services

If you have been involved in an accident, and you think you may have a valid PI case, your actions immediately following the incident can have a critical impact on the outcome of your case. Even if you are unsure if you want to pursue legal action, I recommend following these few simple steps and protect yourself—just in case.

#1. Start a Journal

Write down everything you can remember about the accident—date, time, location, who was present, describe every ache or pain you experience, etc. Be sure to date each entry if you recall additional details a day or two later. It’s a good idea to record the financial impact of your injuries and doctor visits, as well. It can take months or years for a personal injury case to get to trial. Having notes will help keep the incident fresh in your memory. Remember–even the smallest, seemingly insignificant detail can prove vital to your case.

#2. Preserve Evidence

You may want to return to the scene of the accident on the same day of the week and the same time of day as your accident. Write down everything you see. It is also helpful to take photos from several different angles.

If there were witnesses to your accident, talk to them, too. Ask if you can record your conversations and be sure to state the date of the interview.

It is also important to protect physical evidence. If you were involved in a car crash, the damage to the car may demonstrate how hard the collision was. Torn or bloodied clothing shows the extent of your injuries. If you cannot preserve the actual object, be sure to take photos from several angles.

#3. Notify Responsible Parties

It is important that you notify anyone you feel may be responsible for your accident. You do not have to know who was at fault, just whom you suspect might be at fault. All you need to do is send a simple letter to each party(ies) with your name, the time, date and place you were injured, and your intention to file a claim.

Be sure not to provide any detailed information about the accident or the extent of your injuries.

It is also important not to delay sending these notification letters. Although the law does not specify a set time period, submitting notification within 2 weeks of the accident is a good rule of thumb.

Now, you are by no means required to file a claim because you send a notification letter. However, it will help your case if you do send the letters in a timely manner prior to filing suit.

Memories fade quickly, so the sooner you begin documenting your accident, the better. If you need assistance with a PI case or you are unsure if you have a valid PI claim, you can reach me at 618-659-4499 or email me at info@sivialaw.com. For more information on personal injury, visit our website at www.sivialaw.com.

The Signals of Success

Todd W. Sivia Attorney-at-Law

Todd W. Sivia
Attorney-at-Law

I recently read an article featuring a law firm that leased expensive cars as a way to signal the firm’s success. This got me thinking about what signals I want to use—and which ones to I wish to avoid.

While I can certainly appreciate anyone’s desire to drive an expensive car, I think I want people to associate my firm’s success with something more substantial. A flashy car may make a good initial impression, but it doesn’t demonstrate my experience or skill as an attorney.

I think Albert Einstein was right when he said, “Try not to become a man of success, but rather try to become a man of value.” I believe success comes from the satisfaction of the people you serve.

In fact the greatest affirmation of success, to me, is a referral from a client.

A referral is the tangible result of someone else’s trust. Once you earn a client’s trust, that person becomes an advocate for you. And you can’t put a price on that kind of success. It doesn’t come easily, but success rarely does.

For the last 8 years I have worked hard to cultivate a firm where clients are confident in our abilities and know we have their best interests at heart. It isn’t about what we drive or how big our building is. It is about the relationships we build with our clients simply by providing superior service at a reasonable price.

Sure, I could lease a Mercedes. Maybe that would impress some people and, possibly, lead to a few new clients. But instead of getting a fancy car and increasing my fees to pay for it, I think I will drive my GMC and continue building strong partnerships with my clients—my signal of success.

Concealed Weapons Are Legal In Illinois. Is Your Business Ready?

Todd 2 C  By: Todd Sivia, Attorney-at-Law

Concealed weapons are now legal in IL.  Are you prepared?

On Jan 1, 2014, the Firearm Conceal Carry Act went into effect in the state of IL. Many people believe this law will have no impact on them. After all, if you do not want to carry a gun and most businesses prohibit firearms, how could this law possible affect you? Believe me, it will.

But, first, let me briefly define concealed verses unconcealed weapons.

A  “concealed” weapon is a loaded or unloaded handgun carried on or about a person completely or mostly concealed from view of the public or on or about a person within a vehicle.

Unconcealed weapons, by contrast, are loaded or unloaded handguns, or other firearms, that are in clear view of the public.

Ok, so how is this law going to affect you? Do you work outside your home? Do you like to go to the mall? Eat out? The person next to you could be carrying a concealed weapon.

It is true that there are many places where firearms will remain prohibited—schools, hospitals, government buildings, etc. Most businesses will likely post a sign like this [show Gun Sign] which announces that the building prohibits firearms in the building and/or surrounding area.

You may have already noticed that businesses have posted signs at every entrance. But a sign alone may not absolve a business or property owner from liability. What if a customer or client brings in a concealed weapon anyway? What if it goes off? What would you do in that situation? Business owners and managers need to create a detailed action plan—in writing—and update employee handbooks to address potential issues.

You also need to be aware that most public parking lots are considered “safe harbors.” So, even if you are in a parking lot with a posted sign, a licensed individual can still have a firearm in their glove box or trunk. That individual also has the right to have the firearm out of the vehicle in order to transport it to the trunk or glove box.

Think about these scenarios:  You have your CCL and you are taking your gun out of your trunk and moving it to your glove box. Then you see someone else in the parking lot getting mugged. What do you do? What can you do? Is it legal for you to draw your weapon in a lot with a posted sign?

Then answer? Maybe.

What if your employer permits concealed weapons and a co-worker decides to carry one. The gun accidently discharges. Who is at fault? Your boss? The owner of your building? Your coworker?

The answer? It could be all of them. It could be none of them.

Unfortunately, there are a lot questions yet to be answered concerning the FCCA. There will no doubt be test cases in the coming years that will serve to define precedents for the rest of us.

In the meantime, however, there are things you should do.

If you are a property or business owner, be sure you understand the law as it currently stands. Be aware that application of the law is likely to change throughout the year. You also need to review your lease or employee handbook to be certain that this issue is addressed in writing.

If you are considering applying for your CCL, it is important to have a plan of action in the event your weapon is discharged—either by accident or in an incident.

Remember—there are a lot of gray areas surrounding the FCCA.  If you decide to carry a concealed weapon, it is a good idea to talk to your attorney and create an action plan. The key is to know your rights and respect the rights of others.

 

CCWProhibitedAreaSign