The Hughes Law Blog

Do you know who your parents are?

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Do You Know Who Your Parents Are?

 

It is easy for each of us to assume our parents are who we were raised to believe them to be.  Before DNA tests were readily available, if your Mom or Dad told you that they were your parent, and if your birth certificate confirmed that, there was no issue about the identity of your parents. Today, that dynamic has changed. With the advent of DNA testing, it is very easy to determine whether your parents or your siblings are, in fact, your blood relatives.

 

Lawsuits are springing up in the world of probate law, where hushed alleged family secrets are bubbling to the surface when a parent passes away.  Allegations of adoptions, outright adultery, and more surface as siblings square off with one another over who is really a child of the deceased.  Now a DNA test makes it simple to determine whether the people who raised you are truly your natural parents and siblings.  This may matter a great deal when it is time to make distributions from an estate.

 

The law, as always, prefers certainty over assumed uncertainty.  If you have been raised as the child of certain parents, if the birth certificate confirms that you are a child of certain people, then your inheritance rights generally are secure regardless of what a DNA test might show today. On the other hand, if a DNA test confirms that you are a child of a decedent who did not raise you, even if that person never recognized you as their child, you have an opportunity to inherit from that person as your “natural parent”.  If there is any doubt, be sure to confirm your parentage while your parents are still alive.  It could save much heartache after they pass away.

Another Victory in Probate Court

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AnotherVICTORYin Probate Court!

 

We are pleased to announce another successful outcome involving the removal of an executor who would not handle his duties.  In this case, three siblings had placed their faith in their fourth sibling for more than eight years as he refused to sell their father’s home.  All four children were due equal distributions from the estate. He did not reside in the home, and therefore the usual disagreement over living rent free was not part of the discussion.  However, the executor did not want to clean out father’s home, and simply did not want to sell the home.

 

After a trial, the probate judge found that the executor had breached his fiduciary duties to his family members.  He used more than $30,000 of estate money to pay for expenses related to the home over the last eight years including the payment of taxes, utilities, etc.  The court found the executor personally liable for all of the expenses, and ordered him to turn over all accounting books, bank accounts, etc., to the successor executor.  The court further ordered the executor to pay the estate more than $30,000 within 60 days.  The new executor agreed to sell the home immediately and conclude all remaining estate matters within a reasonable time period.  My client was awarded all of his attorney fees for bringing the matter against his brother.

 

Executors must know that any delays in the settlement of an estate is almost always frowned upon, and could cost them money from their personal accounts.

Caregiving For Others

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Many of us know people who have dedicated their lives to caring for elderly parents, other family members or acquaintances with disabilities. It is a continuous, unrelenting, and sometimes thankless job. For non-caregivers, it often feels like someone else’s problem. As attorneys, with a primary focus on elder care, estate planning and probate work, we hear stories from caregivers regularly. While the person receiving care no doubt is very thankful for the care being provided, have your ever wondered just how it feels to be the one who needs care?

Have you ever wondered what it’s like to have someone sitting with you watching over you every minute of every day?  Can you imagine the complete loss of privacy? The complete loss of self one may feel as a result?  It is a frightening experience and one that family or caregivers rarely think about.  If you know someone receiving around-the-clock care, try to imagine how disheartening it may feel to rely on others for so much, without so much as a quiet moment of solitude. Try allowing the person receiving care to enjoy as much privacy as their condition allows.  If constant supervision is not required, allow them time alone; remain busy in other parts of the house.  Allow them space to enjoy the activities they enjoy whether it is watching TV, playing cards, working on puzzles, etc. The point is: hover only as required to perform the necessary tasks that keep them safe from harm.

Mediation Success

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We are pleased to announce another successful mediation effort.  We helped a family struggling over the appropriate care for their aging Mother.  It is not unusual for siblings to have differing views on the best way to assist their aging parents when the day comes that some level of help is needed.  Usually, the matter falls into the hands of the local probate court if the family can’t resolve the matter.

 

At Robert W. Hughes & Associates, P.C., we can assist you by helping mediate resolutions to the problems that arise in coordinating and implementing care for your parents.  If mediation is impossible, we represent people in probate court attempting to obtain guardianships or conservatorships over their parents.  Call us at Robert W. Hughes & Associates, P.C. for assistance.

Equifax Security Breach – Protect Yourself

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What should you do to protect yourself because of the Equifax security breach? Equifax, one of the three major credit bureaus in America, experienced a security breach effecting millions of credit files. More than half of all adult Americans had some private information stolen.  Since the breach, Equifax has published an online submission that allows you to see if your personal information was compromised.  You can visit: https://www.equifaxsecurity2017.com/potential-impact/ to see if you may have been impacted by the breach.

We recommend that you immediately contact all three major credit agencies (Equifax, Transunion and Experian) and even the smaller agency, Innovis, and put a credit freeze on your accounts.  This is a drastic measure and will stop you from obtaining credit until you “thaw” your credit.  It is a bit time-consuming and may cost you up to $3 to freeze your account.  Equifax however, has currently waived all fees associated with a credit freeze.  Freezing your credit will prevent credit cards from being opened and loans from being obtained in your name without your consent.  Freezing your credit will not affect your credit score.

You should consider changing your login information for your various financial accounts and on-line bill pay systems.  This is something that you should change regularly, but given the information theft at Equifax, passwords need to be changed.

Please contact Robert W. Hughes and Associates, P.C. if you have any credit reporting issues.

 

Do you need a will?

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You Need a Will If You Have a Special Needs Child

 

In this series of blogs, we address the issues existing that would necessitate you having a Will. In our last blog, we discussed using a Will as a means of nominating a person who will become the Guardian for your children if you pass away.  Now, we want to discuss with you the ramifications of having no Will or a Will without a Special Needs Trust, yet having an heir who receives needs-based government support.

 

If you have a child who is handicapped and is receiving Medicaid from the federal government, it is needs- based support.  In situations like this, you must consider how you leave assets to this person because you may well disqualify the child from Medicaid or from receiving future government benefits.  To insure your child receives the full benefit of the property you wish to leave for him, yet not destroy their qualification to receive government benefits, you must leave property to that child in a Special Needs Trust.

 

This is a very specialized Trust that is designed to bypass government aid qualification rules, and allows you to provide for your beneficiary after your death.  A Special Needs Trust does not just come into existence; the easiest way to create a Special Needs Trust is by including it in your Last Will and Testament. Therefore, if you die without a Will or a Will without a Special Needs Trust, you greatly expose your child to becoming disqualified from receiving government aid.

 

Please call Robert W. Hughes & Associates for help in setting up your Will to include a Special Needs Trust.

 

August is National Make-A-Will-Month

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August is National Make-a-Will Month.  Now, I’m not sure who comes up with these various national celebrations each month, but because it’s Make-a-Will month I feel compelled to discuss with you the often-overlooked advantage of having a Will.

 

If you have minor children, a Will is the only means you have available by which you can place someone in charge of your children after you have passed away.  There are many ways to distribute assets without a Will.  You can have jointly owned financial accounts.  You can have beneficiary designations. You can have a joint owner listed on vehicles and real property.  However, to place a particular person(s) in charge of your children should you die, you must have a valid Will.

 

Therefore, if you have minor children, there is no better reason to have a Will. Do it so the person you want watching your children is empowered to do so.  Said differently, this will ensure that the person you don’t want to raise your children doesn’t raise them.  Can you imagine anything worse than your children being raised by someone you don’t want to do so?!

 

In your Will, you can name a Testamentary Guardian.  This is the title of the person you nominate to care for your children.  That person’s home becomes the home for your children and this person becomes the caregiver for your children.  Generally it is a good idea to leave assets so this person will have financial resources to care for your children in the manner you want them cared for.  Regardless of the monetary issues, the Testamentary Guardian will become the guardian for your minor children.

 

This is not to say that the person you nominate will in all cases become the new guardian of your children, as challenges can be brought against the person you name.  However, the Probate Court must be convinced that the person you named is unfit to raise your children (as you might expect this is a high standard).  Therefore, unless the person you’ve named is in jail, is habitually on drugs, cannot maintain a place of residence, or other such disqualifying factor, you can generally rest assured that your choice will not be denied.

 

If you die without a Will, any family members and friends can petition the court to become your children’s guardian.  Since the court views your attitude as indifferent (you didn’t create a Will), the court is not interested in whatever your oral pronouncements may have been during life (every person who will testify at these hearings will swear she heard you say you wanted “so and so” to raise your children if you died).  Each person who wishes to have custody of your children will have to put up a fight and demonstrate to the court why they are the best choice for raising your child. THE COURT DECIDES WHO GETS CUSTODY OF YOUR CHILDREN.

 

If you couldn’t think of a good reason to do a Will, you have one now.  Call Robert W.  Hughes & Associates and let us assist you in preparing a Will and the accompanying documents needed for a complete estate plan.

What can you do if an executor or ADMINISTRATOR is not performing his or her job?

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What can you do if an Executor or Administrator (Personal Representative) is not performing his job? Executors for an estate are nominated in the Will to handle all estate matters. The Executor must be approved by the Probate Court as part of probating the Will. Administrators are appointed to handle an estate when a person dies without a Will (intestate). Wills may give an Executor enormous latitude and discretion in how he handles the Will, while Administrators usually have far less discretion on how an estate is handled. All Personal Representatives must comply with Georgia Probate laws. As a general rule, Personal Representatives are supposed to conclude their duties in about 6 months.  However, there are exceptions.

 

If you are the heir or beneficiary of an estate and feel that the Personal Representative is not performing his job, you have a few options. The primary remedy you have is to bring the Personal Representative before the Court by filing a Petition for Settlement of Accounts. This can be filed no sooner than six months after the Personal Representative obtains his Letters. Once you file that petition, the Court will command the Personal Representative to provide you with the full accounting of his work as a Personal Representative and further will command the Personal Representative to conclude the estate quickly. If the Personal Representative cannot provide an accounting, or will not distribute the estate quickly, the court may remove the Personal Representative and appoint another person to handle the estate.

 

We just concluded a matter in Probate Court where the Personal Representative had been in charge of an estate for almost a year,  but failed to perform any duties. The home of the deceased deteriorated in that time because it sat vacant. The bank account had not been closed, nor had the estate bills been paid. The Court removed the Personal Representative and appointed our Client to conclude the work.

 

Should you find yourself in a similar situation, contact Hughes and Associates at 770-469-8887 for assistance.

What should I do if my employer demands I sign a non-competition agreement?

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Georgia is a right-to-work state. That means you may go to work for a new employer at any time and without notice to an existing employer. Likewise, an employer may terminate you at any time and with no reason and with no severance pay.

If you are employed and your employer approaches you about signing a non-competition agreement, you generally have very few options. If you refuse to sign the agreement, the employer can terminate you. This is not discriminatory or illegal. The non-competition agreement can be negotiated with your employer often. These agreements typically keep you from competing against your employer by restricting who you can go to work for or which customers of the current employer you can deal with after you leave your current employment. This is accomplished by one of two methods.

First, the non-competition agreement may say you cannot deal with any people with whom you dealt while employed by your current employer if you begin working for a competitor when leaving your current employment. Sometimes, the agreements attempt to restrict you from calling on people within a geographic radius of your current employer even if you never dealt with those people in your current job. Next, the agreement will attempt to place a time period on you such as one or two years after you leave your job. Finally, the agreement attempts to place a limit on the scope of your conduct after you leave your current employer. By this, I mean you are restricted from doing for the next employer what you do for your current employer. For example, consider that you are an outside sales person for ABC Company. ABC Company may restrict you from going to work with a competitor, AJAX Supply Company as an outside sales person. However, you might go to work as an in-house or an inside sales position or as a manager or some other position not outside sales.

Therefore, the things you should be looking for at a non-competition agreement are the length of time that you cannot compete with your former employer, the things you cannot do if you go to work for a competitor of your current employer and the people with whom you cannot have contact if you go to work with a competitor of your current employer. These three items can be negotiated usually. If you are planning to remain at your current employer, these contracts have little influence over your day-to-day activities. As a matter of fact, your employee may see you as a more loyal employee if you sign one of these agreements. Of course, you have given up valuable rights if you sign such an agreement, and you should try to negotiate for additional compensation or benefits.

 

Do you have your beneficiaries named properly on all of your retirement and insurance products?

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Blog Entry for May 22, 2017

One of the largest areas of conflict results from a person not properly identifying his beneficiaries on his insurance policies or retirement accounts. Please check your beneficiary designations annually to insure that the people who you wish to inherit a particular asset is properly identified on that asset as a beneficiary. If your beneficiary is your spouse, it is a relatively simple designation on the policies or accounts. However, if your children are your secondary beneficiaries, extra care must be taken to properly identify the children to assure they receive their inheritance at the appropriate age. Children under the age of 18 cannot directly inherit these assets. Rather, the assets must be placed into a custodial account until the children reach the age of majority.
Therefore, if on your insurance policies and your retirement accounts you simply listed “your children” as the beneficiaries after your spouse, you must make sure your children have reached the age at which you want them to have full use of the money. If the children are under the age of majority or you simply do not believe they are mature enough to spend the money even if they have reached the age of majority, designate a trust as the beneficiary for the benefit of the children. Typically this is done by including a SIMPLE trust in your will for the children. If you do this, then the Trustee holding the proceeds, whether it is an insurance company or your IRA or 401k Trustee, will pay the money to the children’s trust. It is the Trustee’s duty to establish the bank accounts and manage the money under your guidance until the children reach the age at which the money is to be paid out. Therefore, have a lawyer review your will and other estate planning documents. Then, once every five years thereafter, review your will to make sure that it is still current, and addresses your desires appropriately. We are happy to help you review your current planning documents to ensure they meet your goals. Call us at Hughes and Associates, P.C. to help with these goals.