As mentioned in my blogs, there are many reasons to prepare a Will even when there’s not a lot of money in the estate. A very important function of a Will, besides distribution of assets, is providing for the care of children and handling money for them during the time they are not yet legal adults (age 18 in Pennsylvania), or even older, to provide for college or other needs. Up to age 18, a minor is not permitted to get possession of property until they become adults, so a guardian to care for them, and a trustee to handle the money is necessary. If you don't specify who should have those responsibilities, the Court will pick one and that might not be who you would choose.
Besides handling the money, you should specify your desire for who would be the guardian of your children (usually the surviving spouse, and, as an alternate, some other trusted adult caregiver). Similarly, you can and should specify who will handle money or property for minors. While that is often the same person as the guardian, it doesn’t have to be: sometimes a person who is a good caregiver might not be financially responsible or you may prefer checks and balances by making the person who handles finances different from the person who raises children. The one who raises children is called the guardian; the person who handles finances is called the trustee. Besides specifying who should be the guardian and trustee, you should also decide how long the assets will be held in trust. Until fairly recently, many people terminated the trust at the youngest age possible – 18 years old. Now, it is increasingly common to use an older age, such as 23-25, or older, protecting money for post high school education, etc.
Trusts for minors can be very complicated, when there are many assets or property rights, but even a basic Will where there might not be a lot of assets, it is wise to include trust provisions for handling money for care, health, education and general welfare of children, and deal with other issues of importance to guide the trustee. Establishment of a trust is also important because it may help protect the children from themselves. For example, when a minor decides to buy an expensive car. Another important reason for a trust is handling non-estate assets, such as the proceeds of a life insurance policy which often is not set up as a trust in the policy itself. If there is such an oversight and the beneficiary is a minor, the insurance company will require establishing a guardianship which can be inconvenient and costly to do.
It is worth considering, even though parents love their children all the same, parents often recognize that their children are not all the same. For example, there may be a child who has greater or lesser needs than another child.
There are many other situations where the disposition of your property can and should be handled in a Will, such as when a couple may be separated and/or involved in a divorce. We can discuss more complex issues like this in your initial consultation.
It is a common misunderstanding that people who don’t have a lot of money or assets don’t need a Will. That idea is further reinforced when a husband and wife own everything in common. The surprising truth is that, in the absence of a formally written Will, Pennsylvania law has already “written” one for you. When someone dies intestate (that is without a written Will) on death, the property of that person will be divided among surviving relatives. Even more important, if you are married with children, your spouse has to share the estate with the children - it does not automatically all go to the surviving spouse. It does not take much imagination to understand why the existing law might be unsatisfactory for most people. And then there is the problem created for your heirs when in the absence of a Will it turns into a family feud.
Lastly, if you think that if you have no property at all, then making a Will could be a waste of time. Not really. We will deal with the very real need for a Will when there are children. We can discuss this in detail in the office consultation.
Paul Brownstein brings his many years to helping people get through what is often the most difficult stress in their lives: separating emotional and financial involvement with another person when that was never supposed to happen. The Law Offices of Paul Brownstein gives great attention to both aspects of clients' concern: being an advocate to protect your interests and providing counseling to make the best legal and lifetime decisions. Essentially we believe that our clients are very good at things going right. We are very good at thinking about things going wrong - and to help our clients deal with that very demanding pressure. You will have confidence to proceed in your best interest. People understand very well that when two living together are now living apart, life will not be the same. We know that there is an emotional element in a major life change, but we especially understand from having helped many people in the frequently far greater impact of the economic fact that divorcing couples have to deal with. That's because it costs more for each person to live apart than for two to live together. Each person must now establish a separate household with resulting costs of rent/mortgage, food, utilities and the like. Even when they think about that, what is not fully anticipated is the often uneven impact on each. A spouse who earns less may bear the responsibility and costs of daily child care which is often not understood or considered by the other spouse. That economic issue may be worsened when the party who is the primary caregiver wants to stay in the marital residence, because of an emotional commitment or desire to keep the children in a familiar home. Even with additional support, those expenses can unmanageable. And the party who earns more can be unpleasantly surprised to find that despite a substantial income, the prior standard of living can no longer be enjoyed.
Unfortunately, while both parties want things to be "fair", usually there’s nothing fair about it because the applicable guidelines are usually based on a number of factors that have little if anything to do with actual needs or expenses, good or bad conduct during the marriage, or a desire to maintain a reasonable approximation of the prior standard of living. In states like Pennsylvania, support and property division is determined based on guideline calculations that are almost exclusively income oriented (for a hypothetical average couple) without regard to actual expenses of the parties in this instance. That is how Pennsylvania determines the division of marital property and debt. It is called “equitable distribution,” which does not mean “equal” but rather an attempt to leave the parties in some measure of parity, taking account for such factors as length of the marriage, relative current earnings and future earning prospects, responsibility for care of children, health, etc. In many cases, as a result, property is divided in an unequal ratio, the larger percentage going to the spouse who is less well off economically. Even more than support or custody, determining what should be a "fair" asset distribution can be the most complicated and emotionally upsetting issue.
We believe it is the best family law practice, for a family law attorney to spend considerable time counseling a divorce client about the practical consequences of a divorce and the need to make a careful long term plan for the post breakup life. Sometimes, that requires making some very hard short term decisions, such as moving to a different neighborhood, or selling the family home. You may be sure that The Law Offices of Paul Brownstein will bring to bear our years of experience to helping you obtain the best possible outcome.
In our long experience as a family law attorney we very often have to deal with a client’s strong desire to apply custody law to pets. That is not surprising considering that people are devoted to their pets and think of them as members of the family, especially when there are children (but not only!). Our client may be shocked and dismayed when we explain that the desire to obtain custody of a beloved cat or dog (or a less typical pets like a turtle – yes, we’ve had that case) when we explain that under Pennsylvania law, because pets are not “people,” you cannot obtain custody of a pet however loveable. It is very distressing to an individual who has an emotional commitment to a pet and cares for it. That can be a very challenging problem and our law office finds a way to deal with a client’s strong desire to get “custodial rights", or work out a “visitation schedule” while at the same time dealing with the reality that courts simply do not recognize emotional value or grant any meaningful financial worth to a pet other than what someone might pay to buy it. Sadly, a pet that is priceless to the owner may be nothing more than an old cat or dog to someone who would rather buy a kitten or a puppy. The court will only grant significant value if there is real market value as in the case of a champion show dog or a rare animal.
As a result, if the parties can’t come to a reasonable compromise, when a divorce case ultimately comes before a judge to decide what to do with a pet, the judge will treat it as nothing more than personal property of modest value. What is all the more disheartening to the spouses is that the judge will likely be less than friendly to their desire to litigate that issue in a trial, leaving them mostly on their own which can be very unsatisfactory. When that happens, the dispute can quickly become an exercise in frustration because, as a practical reality, judges do not like to get involved in litigation over personal property of any value which is not significant.
It is therefore the best family law practice, when advising our clients, to explain the necessity of being reasonable and realistic, and thereby avoid a very trying and costly war which can adversely affect other rights of potentially greater economic importance.
We see a lot of clients who are overwhelmed by the seeming complexity of their legal problems. The reality is that usually the problem is not complicated so much as an inability of the party to maintain some perspective. Ultimately any legal problem is composed of only a few smaller problems (lawyers call this “spotting the issues”) and the client is unable to see a clear path because of trying to think about the overall concern instead of those individual issues.
For example, in any divorce case, there are really only 3 or 4 issues, typically property division, custody, and support, and sometimes not even that many, such as when there are no children. Certainly all of those issues are connected, but they can be analyzed and resolved separately – and when each of the smaller issues is solved, the “big” problem "goes away" because it is an optical illusion caused by trying to deal with a number of smaller issues that should be examined separately. That's why, in our practice we tend to focus on the most important concern of our client's first and then deal with each of the other issues in turn.
The same exercise of spotting the issues applies to virtually any area of the law, whether it is a contract dispute, where the “real” dispute is not interpretation of all the contract language, but what rights are in play; a dispute over debt, where again the real issue is not so much whether a debt is owed (usually it is), but how to collect or defend against it; or in landlord tenant cases, where a tenant feels that he is being forced out sooner than he can when it should be whether or not he has rights that need to be respected.
We are often consulted by people who have gotten into legal difficulty. They come to us because things they have done have turned out to have unpleasant surprises attached as a consequence. Unfortunately, unlike television programs, the “good guys” do not always win - when they do, it can be merely a coincidence because in our experience the party who "wins" is the one who was "best prepared." We bring thorough preparation and detailed consideration of the best way to proceed which often results in a favorable outcome.
Whether your legal concern is a business matter, government action or marital difficulties, it is always best to consult a knowledgeable professional before taking action. That’s because no matter how reasonable or fair you may feel yourself to be, usually so does the other side. It is a working guide for us that “fair” is a matter of personal perception, and the inability to understand that the other side doesn’t have to be “wrong” to disagree with you. When things are complicated, and it involves things that are technical in nature like the law, get advice before you act. It is so much easier to take easy steps now than to try to fix things later. Experience counts; so when it really matters, the choice is simple.
Here is an interesting case about how someone who has an understandable grievance can innocently get into deep trouble. We recently had a case which concerned similar legal issues. The client, feeling that the treating doctor did not adhere to the best practices with claimed resulting harm, posted a negative review, including a statement that the service was so bad the doctor’s license should be taken away. In the internet age, negative and positive reviews of service providers – and checking for such reviews before retaining them – has become commonplace. And the target of such comments could decide to retaliate.
Without regard to the merits, understandably, the doctor in our case was very distressed about a perceived attack on reputation. Believing that a such a strongly negative review would have an adverse impact on the practice, the doctor first asked that the review be taken down. When that did not happen, the doctor filed suit for defamation. Included in the complaint, was a request for a restraining order, barring further adverse comments, which is an ordinary part of such a complaint. A large sum for damages was also demanded.
Even though the defendant felt that nothing untruthful was said, it quickly became apparent that the inconvenience and cost of the litigation was beyond the means of the defendant, leaving no practical alternative but to accept a settlement in favor of the doctor.
What should be taken away from this episode is that defamation is a serious matter, taken seriously by the recipient of the unfavorable comment. As a Supreme Court justice once said “freedom of speech is not unlimited.” Just as you have no right to shout “fire” in a crowded theater, you should think carefully about posting on the web in order to have the satisfaction of telling the world about it; on the web, when you post something, you really are telling the world about it, and if the one you are writing about doesn’t like it, there can beserious consequences.
To be sure, one may publish a negative review if it is “true,” and one can prove it. Otherwise, while “truth” is generally a defense to a claim of defamation, stating something that true in a malicious or unwarranted way is not permitted.
Before making strong statements on the internet about another person’s reputation, it’s best to take some time to think about it – and allow the heat of the moment to cool – and choose your words carefully.