Overturning a trial court’s decision on a will or trust matter is not simple. This is largely due to the fact that in probate court judges are given wide discretions for their decisions.
It can be frustrating for a beneficiary who assumed they were in the right to realize that they were not successful in their initial form of estate litigation, but it does not always mean that it is in their best interests to proceed with filing an appeal.
The appellate court does not have the power to rehear the case. Instead the appellate court must adhere to one of three standards when reviewing a case on appeal and the two most commonly used standards in these cases are very difficult to meet by the appealing party.
The general appellate review standards are de novo, substantial evidence, and abuse of discretion. Overturning a trial court decision with the de novo review standard is very rare even though it is the best standard to use. De novo review applies to strictly legal questions.
Under the substantial evidence standard, the appellate court evaluates the facts as decided by the trial court and determines whether there was enough evidence to support those factual conclusions. This appellate court is not able to rehear or relitigate the case. Finally the abuse of discretion standard applies only when a trial court has the power to exercise discretion, which is the case in many probate court matters. But a trial court’s decision will only be turned over on appeal if the trial court’s action was a clear case of abusing their discretion.
If you wish to protect your money or assets or are about to receive a sudden windfall such as an inheritance, you may want to consider a number of strategies to protect yourself from lawsuits. Simple reason: “The Deep Pockets Theory”; the people with the money are the people who are sued.
1) Increase your liability insurance. If you are about to inherit $3 million, call your broker and increase your liability policy to protect that additional $3 million. Do it before you get the money. Rates are inexpensive.
2) Consider separating assets. You may not want your spouse to have access to your new windfall. If you put the money in a joint account, that is what will happen.
3) Protect yourself from renters. If you have rental property or are going to get rental property, put the property into a business entity such as an LLC to shield your assets from a disgruntled tenant. That way, they can sue the entity for what it has, but cannot go after you and what you have.
4) Create a trust and/or business entity to shield your assets. If you do part-time work you probably are operating as a sole proprietorship. But all of your assets are at risk if you are sued.
5) Be careful with partnerships. If you have an informal partnership, you are responsible for the actions of your partner. Form an LLC or other entity to provide legal protection.
A judge in Pennsylvania has thrown out a case of assisted suicide lodged against a nurse who was charged with murder last year for allegedly giving her father a bottle of morphine pills.
The decision is the latest in a series of developments signaling that courts and states are not interested in criminalizing care that may hasten death,according to a report on NPR.org.
In this case, Barbara Mancini, 58, a nurse, was charged with assisting in the suicide of her 93-year-old father in Feb., 2013.
The father, Joseph Yourshaw, was in home hospice in failing health. A hospice nurse checked on him and found him unconscious. The hospice had him taken to the hospital by ambulance against the wishes of the family. He was revived, but died a few days later.
In a scathing 47-page opinion, the judge wrote that the state did not establish that Mancini had committed a crime — that she tried to help him commit suicide rather than ease his pain.
She said the charges were based on speculation. Mancini said she only wanted to help ease his pain but a hospice nurse and a police officer said she told them she wanted to help end his life. He had previously told hospice workers and family that he wanted to die.
The judge said there was no evidence Mancini fed him the pills and noted that the man was capable of opening the bottle and taking the pills on his own. It was ruled he died of a morphine overdose.
“This case demonstrates that the government has no business interfering in families’ end-of-life decisions,” Mickey MacIntyre of the advocacy group Compassion and Choices said in a statement. “This prosecution could have chilled end-of-life decisions and pain care for millions of future terminally ill patients who simply want to die at home, peacefully and with dignity.”
It is becoming more commonplace for spouses and cohabitating unmarried couples to keep their financial accounts separate. While this strategy has many advantages, it comes with at least one (avoidable) asset protection pitfall. A recent article discusses what this pitfall is, and how you can avoid it.
As the article explains, tangible property that is jointly held between two spouses has an automatic layer of protection against plaintiffs and bankruptcy creditors in most states. This protection comes from the fact that plaintiffs and creditors often will not pursue tangible assets that they can only gain a half interest in. Most often, tangible assets must be liquidated in order to be of any benefit to a creditor or plaintiff. However, this would be impossible if, for example, a creditor and your spouse are half owners of your home.
Alternatively, tangible assets that are owned separately are considered fair game because the creditor or plaintiff can pursue the entire interest. However, this problem can be easily solved through the use of trust accounts. If spouses would like to keep their assets separate, they can each create a trust account to hold the assets. This will not only protect the assets from creditors and plaintiffs, but it can also facilitate the transfer of the assets upon either spouse’s death.
Asset protection strategies are vital in protecting a person’s ability to retire comfortably. Without these strategies, a person’s assets could easily be put at risk based on unexpected personal liability. As a recent article explains, when implementing asset protection strategies, it is best to err on the side of caution.
As the number of lawsuits filed in the United States continues to grow, so does the potential liability of every American citizen. No line of work or business is unexposed. Unfortunately, most people do not realize that they are exposed to liability. Moreover, even if a person understands that he or she is exposed to significant liability, it is next to impossible to estimate the value of damages that may be awarded against them in a lawsuit. For example, a person awarded one dollar in actual damages may be awarded millions of dollars in punitive damages.
Asset protection allows a person to protect his or her home, business, and various other assets from unexpected claims or lawsuits. Although a person can never fully protect his or her assets, they can take steps to minimize potential lawsuits, their financial impact, as well as possibly negotiate a better settlement.