Frequently Asked Questions

Wills Trusts & Estate Planning  Frequently Asked Questions
 

What is an estate?

Your estate is the total of all property you own or control. Even if you do not own the property in your name, you can possess an ownership interest through a trust, partnership, or joint ownership. Any property or money which becomes available upon death, such as a life insurance payment, is also part of your estate.

Typical portions of an estate include:

  • Real estate and buildings.

  • Personal property including cash, furniture, vehicles, stocks, art, etc.

  • Life insurance and other financial instruments.

  • Business interests or partnerships.

  • Debts.

  • Claims, including personal injury claims.

What is a will?

Your will is a legal document that details the organization of your estate upon your death. Wills are enforced in probate court.

How can I revise my will?

Wills remain valid, unless a new will is written. You can add a “codicil” to an existing will, to change or add something to it. Codicils must meet the same legal requirements for language as the original will. Generally, a will cannot legally be revised without the use of a codicil.

What is a trust?

This is a legal entity which manages an estate or other assets for the benefit of other persons or entities, including corporations. There are many different kinds of trusts. 

What is a probate estate?

A probate estate is the total of all assets that go through the probate process once their possessor dies. This generally includes all assets in the deceased person’s name and those paid to the estate. It often does not include joint assets, insurance, assets held in trust, or similar assets. 

What is a living trust?

Under a living (or a “revocable inter vivos”)trust, a person transfers ownership of their assets to another entity while alive. The terms of the trust instruct the entity on how to manage the person’s assets before and after death. A living trust does not avoid taxes.  It may reduce the costs of administration of your estate but increases current costs because you must set up the trust and transfer all assets to the trust.  

What is a conservatorship?

If you become incapacitated, and a power of attorney has not designated someone to act on your behalf, a court procedure is necessary to assign a legal guardian to you and your estate. The preparation of a power of attorney can avoid the cost and time of a conservatorship process.

Do I need an estate attorney when I can write a simple will myself?

While it may look simple, the drafting of a will and other estate planning is actually very complex. State laws regarding estate planning change often, and failure to comply can make any changes illegal. We have experience in estate planning and can help you to avoid making a costly mistake, and keep you up to date on changes in estate law.

 

Remember: an improperly prepared will is invalid, and can create court battles and expenses that can eat away at the assets you spent a lifetime assembling. It is much better to safeguard your assets by consulting an attorney before beginning the writing of a will.

 
Real Estate Frequently Asked Questions

What is real estate?

Real estate (also called “real property”) is a term for land and improvements to that land, such as buildings and infrastructure.  Commercial real estate can include factories and equipment as well as other improvements.  Resources such as minerals or petroleum below the ground are part of real estate.  These resources or the rights to extract them can be sold individually.  

What is a disclosure statement?

The form required to be given by the seller to the buyer setting forth any problems with the real estate as described above. 

What are property restrictions?

All land can be subject to federal, state and local regulations.  In addition, private restrictions can be placed on a property as a condition of sale.

 

As an example, federal regulations govern environmental impact.  State laws typically discuss access to property and procedures for changing property boundaries.  Local laws cover zoning rules, and everything from historical preservation to noise levels.  Private restrictions are often created by developers who want their developments to maintain a cohesive look or feel.  Developments may employ restrictive covenants to enforce everything from garage size and house design to color schemes and lawn decorations.  

 
Personal Injury Frequently Asked Questions

What's the first thing I should do if I am injured?

The main thing to do is to write down details, including names, addresses, phone numbers and, in case of automobile accidents, insurance names and policy numbers from others involved, witnesses and police officers, including their report numbers. Keep records of where and how the accident happened, including the weather and time of day. Take pictures of the injuries, property damage, and several views where the accident happened. It is important to review the section of “What to Do In Case of Injury or Accident” to see additional points. A crucial task will be to find a competent Personal Injury attorney.

Do I have a winnable Personal Injury case?

Frankly, the best one to answer this question is a Personal Injury attorney. If you have suffered injuries due to another person’s actions or failure to act (such as not cleaning up a spill or not restraining an animal) you may have a Personal Injury case. If someone has attacked your reputation (verbally or in writing), and/or caused emotional distress, you may have a Personal Injury case. You must be able to prove your case, and a Personal Injury Attorney may be able to help you determine if your case is worth pursuing. 

How long do I have to file a lawsuit?

The statutes of limitations vary by state. These determine the amount of time allotted to file a Personal Injury lawsuit. The importance of contacting a competent Personal Injury attorney that has experience with your type of case as soon as possible after an injury or accident cannot be stressed enough. Missing the deadline my cause your claim to be dismissed. 

What should I bring when I meet my lawyer?

The more information you are able to give your Personal Injury attorney the better. Even if you do not have everything (such as medical bills), providing as much as possible will assist the Personal Injury lawyer to determine the validity of your claim in a courtroom and what additional information is needed. Anything you currently have that is relevant to your case, including police reports, photographs, newspaper articles regarding the incident, eyewitness information, details about the conditions surrounding the accident or injury, and any medical reports should be presented at your first meeting. If the other party’s insurance has contacted you, their contact information and any information they provided will assist your Personal Injury lawyer. Keep notes on everything-even small items may be important. 

What award may I receive from my Personal Injury lawsuit?

If the lawsuit is successful, a party or parties are liable for the damages from the injury and their liability insurance company must pay what the courts have determined. These items may include many variables related to the accident such as medical expenses, income lost, permanent physical disability or disfigurement, emotional damages (such as stress, embarrassment, depression and other conditions), damage to property, and possibly the loss of family, social and educational experiences and more. Damages, money intended to restore the victim to the position they were in before the injury, is not considered taxable income by the federal or state governments. 

What is "negligence?"

How an “ordinary reasonable person” should act in each situation in the case of a Personal Injury is the critical issue in Personal Injury cases. Negligent persons fail, for example, in driving safely, repairing property, restraining animals, or placing warnings. A jury often determines if “ordinary reasonable person" standards are met after presentation of evidence and argument at trial. 

Is there any other possibility for Personal Injury liability if negligence can not be proven?

Yes, there are cases where persons or companies may be "strictly liable" even if they have not acted with wrongful intent or acted negligently.  In these cases, injuries may occur from accidents relating to defective or unpredictably dangerous products. Another instance is when the liable party participates in various actions, such as storing or using explosives and/or other dangerous substances, or by keeping dangerous animals. In these cases, responsible parties can be held strictly liable for harm caused to others due to such activities. Strict liability is imposed on those conducting such activities because the activities pose an undue risk of harm. This means that anyone responsible in conducting these activities does so at their own risk because they are liable if someone is harmed, making them accountable. 

How will the person who caused my injury be punished?

Defendants in civil actions, such as Personal Injury, are not fined nor do they receive jail terms as punishment in civil court. Those types of punishment are determined in criminal court. Punitive damages may be awarded by juries and courts that are designed to punish defendants who have intentionally harmed or behaved recklessly. Punitive damages are awarded to discourage such defendants from repeating their offenses in the future. 

What if death occurs before the Personal Injury lawsuit is completed?

In any case, if the person filing the Personal Injury lawsuit dies, the case may continue. Their Personal Injury attorney will assist in making the appropriate changes to complete the suit, as often it is the heirs or executor of the deceased’s estate that receive the amount awarded through a wrongful death action. 

 
Auto Accidents Frequently Asked Questions

Can I be compensated even if the accident was my fault?

Compensation if the accident was your fault depends on the laws of your state.  In some states, who was at fault in the accident is not considered with regard to compensation.  In those states, part or all of your economic damages may be paid by your no-fault insurance policy.  In other states, which driver is responsible for the accident is important for compensation.  

However, you may still be able to recover the costs of your injuries, even if the accident was partially your fault.  In that case, you will have to show that the other driver was more responsible for the accident than you were or you may have to reduce the amount of costs you can recover by the amount that you were responsible. 

Who can I sue for compensation for my injuries?

In some cases, a person who was injured in an accident may be able to sue other people than just the responsible driver.  For example, if the responsible driver did not own the car he or she was driving, you may be able to sue the car’s owner.  If the responsible driver was drunk, you may be able to sue the person who served him or her alcohol, if that person served the driver even though he or she was obviously drunk.  In other cases, you might be able to sue a person who wasn’t involved in the accident, such as an automobile manufacturing company or a construction company, if there was a defect in the vehicle or the road that caused the accident.  If the accident involved a semi-truck and the driver violated rules and regulations, you may be able to sue their employer. 

How much compensation can I get?

The amount of compensation in each case varies widely.  Compensation can depend on many variables and the amount can’t be determined without analysis of the injury, medical costs, loss of wages, and the permanency of the injury.  There is no set rule for compensation and each case is unique. 

Will I have to go to court?

Many motor vehicle accident cases do not result in a lawsuit.  Most lawsuits are settled without a trial.  Settlements avoid the cost and the huge time commitment of a trial and may result in a greater amount of compensation than a trial.  However, if the case can’t be settled in a way that is acceptable to both sides, it might be necessary to go to court. 

Where will the money to pay for my injuries come from?

The responsible driver’s insurance company pays your compensation in many states.  If you are in a no-fault insurance system state, your own insurance company may pay some of your compensation.  If the responsible party doesn’t have enough insurance cover to compensate you for all of your injuries, your own insurance policy may have coverage for the remainder of your compensation. 

When will I get my money?

When you get the compensation from your motor vehicle accident case depends on several variables, including the severity of your injury and whether your case goes to court.  If you have a serious injury, you want to wait until your doctor has released you or until your doctor can determine your future medical costs related to the accident with reasonable certainty.  The time you need to heal from your injuries may be the determining factor in amount of time it takes to settle your claim.  Additionally, if you have to go to court, it may take longer to get your money than if you settle your claim. 

What do I do if I can’t afford a lawyer?

Many law firms will take your personal injury case on a contingency fee basis.  This means that your lawyer will get a percentage of the amount that the lawyer collects for you.  If you don’t get anything, your lawyer won’t get anything either.  However, you are generally responsible for any court costs, filing fees, and witness fees, no matter what the outcome of the case. 

Do I have to go to the doctor?

If you are injured in a motor vehicle accident, you should go to a doctor, both for your peace of mind and to document your injuries to support your case.  Often, a car accident injury isn’t apparent right away.  Go to your family doctor, an emergency room, or another trained medical professional as soon as any symptoms appear. 

How soon must I file my claim?

The time period within which a person has to bring a claim for injuries in a motor vehicle accident varies from state to state.  The way that the time period is computed also varies.  The time period may also vary within a state depending on the circumstances of the accident, including the injured person’s age, the type of claim, the particular facts of the injury, and when the injury is discovered.  It is very important that you know the time limit for your situation, or you may not be able to get any compensation for your injury! 

What if the responsible driver or his or her insurance company offers me a check?

If you accept a check from the responsible driver or his or her insurance company, you may be barred from getting any additional compensation from the driver or the insurer.  You shouldn’t accept a check or sign a release until you have spoken with a lawyer.  Generally, your lawyer will advise you to wait until you have finished the treatment for your injury and have been released by you doctor, so that you know that you have enough compensation for all of your medical expenses.  An insurance representative may encourage you to settle your case for the lowest amount of compensation possible and not to speak with a lawyer.  You should consult with an experienced personal injury lawyer before accepting any payment, signing any release, or settling your claim so that you can make sure that you are receiving fair and full compensation. 

 
Taxation Law Frequently Asked Questions

I am a sole proprietor. Do I need a tax ID number?

You do not need a tax ID number if you have no employees and file no pension plan or excise tax returns. 

What business expenses can I deduct under federal law?

Any expense related to your business which is necessary and reasonable is deductible. Federal law does disallow some expenses. If you have any questions, you should consult an attorney with experience in tax law. 

I work from home. Can I still deduct business expenses?

To deduct expenses for part of your home, that part must be used often and exclusively for work. Further, you must either use your home as your principal place of business or meet clients as part of business there. You can also deduct expenses for a separate structure (such as a garage or small office) which is not connected to your home.

Can I deduct business gifts?

You must meet IRS requirements before deducting the cost of a gift. Under most circumstances, you cannot deduct more than $25 for gifts.

Can I deduct expenses for my hobby, if I made income from it?

You can only deduct hobby expenses up to the extent of your income from the hobby. 

Do I need to file a return if I had no income?

If you have a small business or partnership, you only need to file a return if you receive gross income or incur a federal tax credit or deduction. Corporations must always file a tax return. 

Which form should I use to file my return?

This depends on how you have organized your business. Corporations must file a Form 1120 or 1120-A. S Corporations file a Form 1120S. Partnerships file Form 1065, while sole proprietorships file a Form 1040.  

What’s an audit?

The IRS launches investigations (or audits) to determine the accuracy of tax returns. An audit will measure your income and expenses to see if your business has paid the correct amount of tax.

Attorneys

Humboldt Office

30 N 8th Street

P.O. Box 337

Humboldt, Iowa

Tel: 515-332-1157 

info@humboldtlaw.com

Laurens Office

130 S 3rd Street

P.O. Box 91

Laurens, IA 50554

Tel: 712-841-4523

*Formerly Winkler Law

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The information you obtain at our firm web site is not, nor is it intended to be, legal advice. It is recommended that you should consult an attorney for individual advice regarding your own situation.