Archives for posts with tag: business

You can’t take it with you, but it has to go somewhere

We all know you can’t take it with you when you die, but you can take steps to ensure “it” goes were you think it should; otherwise, Texas law will decide for you. Ownership of some assets, such as life insurance proceeds and funds in bank accounts, may transfer to a designated beneficiary upon death. The property a person leaves behind is his estate. What follows is a general description of what may happen to a person’s estate after he departs and before it is distributed to his distributees.

The contents and value of an estate may change after death. Estates receive income and pay debts incurred by the deceased or his estate. Common income sources include rent owed to the deceased and dividend payments. Insurance premiums to insure estate property and funeral expenses are common estate debts.

In many cases, a personal representative must be appointed by a court to manage the estate’s affairs until it is closed. The personal representative figuratively steps into the shoes of the deceased and is tasked with such things as gathering the estate’s property and keeping it safe, filing a final tax return for the deceased, filing estate tax returns, paying debts, selling estate property, notifying estate creditors and beneficiaries, filing an inventory of the estate’s assets, and ultimately making distributions. A personal representative may have to account for all property that came through the estate while she is in charge. In carrying out her duties, the personal representative should never comingle estate assets with her own and should open a bank account solely for estate transactions.

A personal representative is either independent or dependent. An independent representative has autonomy to carry out her work with very little court oversight. Alternatively, a dependent represetative is closely supervised by the court that appointed him. Dependents must get court approval to purchase or sell property, pay most debts, make distributions, etc. Whether an administration is independent or dependent depends on the circumstances surrounding the estate and whether the deceased left a valid will.

A will may be offered for probate within four years of the testator’s date of death. The person who offers a will for probate is referred to as an applicant. To probate a will and have a personal representative appointed, the applicant’s attorney must file an application and the will with the proper court, provide certain notices, and present evidence at a hearing to substantiate the application. Most wills name a personal representative and do not require her to post a bond or file a final accounting. Wills that waive these requirements reduce costs to the estate. Once a will is admitted to probate, its directives may be carried out.

Alternatively, when a person dies intestate (without a valid will), different rules apply. The application process is similar but requires more steps and is usually more expensive. An attorney ad litem must search for missing or unknown heirs, additional witness must be called to testify in support of the application, and the personal representative is usually required to post a bond and file an accounting. Intestate administrations are also more likely to be dependent.

Intestate distributions to the devisees are governed by statute, not the wishes of the deceased. The Texas Legislature has considered multiple family structures in determining how estate property gets distributed. The right to receive distributions is based on marital status and degree of consanguinity to the departed. For example, if a married person dies leaving Wife and their two children, Wife inherits the community property and separate property is divide among Wife and the children, but no one else would inherit. If the two children were not Wife’s children, then the children inherit ½ of the community property and Wife the other ½.  When someone dies without children or a spouse, their parents and siblings inherit. If there are no living parents or siblings, more distant relatives will inherit. If no heirs are found, an estate will ultimately go to the state. These statutes do not account for friends or more distant relatives who may be the natural object of the deceased’s affection. For example, a niece or neighbor who cared for mom during the year prior to her death. The statutes are ridged and may not allow the deceased’s wishes to be carried out.

This article does not discuss every way in which an estate may be distributed. Regardless of whether we depart with a will or die intestate, our property will ultimately go somewhere. To benefit those you love and to ensure your wishes are carried out, it is best to consult with an estate planning attorney and make a plan.

Ryan Webster can be reached at rwebster@dentonlaw.com and www.dentonlaw.com.

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Have I Formed a Contract?

What must happen to form a contract? Like the NFL’s catch rule, it’s not always clear. Most of us enter into contracts on a regular basis. We buy and sell goods and services; we make promises in exchange for things we want. This article addresses some of the fundamentals associated with forming a binding contract.

Generally, to create a contract one party must make an offer to another party, the other party must accept that offer, and something of value or perceived value must be exchanged. That something is called consideration.

The offer may be for a good, service, promise, etc. The offer must be reasonably certain. For example, John offers to sell Larry his horse, Hurricane, for $70,000. Unless John owns multiple horses named Hurricane, that statement is probably a sufficient offer. If John had not named a price, his offer would not be certain. Offers may be revoked before they are accepted. An offer will lapse if it is not accepted in the stated time or a reasonable time. A reasonable amount of time to accept an offer is dictated by the surrounding circumstances. A reasonable time to accept an offer to buy a perishable item is likely shorter than an offer for non-perishables.

The next step to forming a contract is accepting the offer. Acceptance must be communicated to the person who made the offer (or his agent), and acceptance must be clear and definite. So, if Larry tells Bob (who is not John’s agent) that he accepts John’s offer, has Larry actually accepted? No. Larry’s statement was not made to John. If Larry says to John, “I think I’d like to buy your horse”, Larry has expressed a desire to buy Hurricane but not a clear and definite acceptance of John’s offer. Communicating acceptance, however, does not necessarily require a person to sign a contract or say “I accept.” If upon hearing John’s offer, Larry handed John $70,000, that act would constitute acceptance and performance of Larry’s contractual obligation. If, instead, Larry says to John “I’ll pay you $60,000 for Hurricane”, Larry has rejected John’s offer and made his own offer (a counteroffer) to purchase Hurricane, which John can either accept or reject.

Usually, consideration must be exchanged or promised to create a contract. The consideration for John and Larry is money and a horse. Consideration consists of either a benefit to the promisor or a loss or detriment to the promisee. Consideration may be provided by or to someone who is not a party to the contract. Also, consideration is generally regarded as adequate, except when its inadequacy would “shock the conscience” or is inadequate as the result of fraud. In other words, bad deals are usually enforceable.

Under certain circumstances where consideration is not specified, but one party relies to his detriment on a promise made to him by another party, the promise may still be enforced. For example, John assures and reassures Larry that he is going to give him the rest of the $10,000 he needs to build a new barn for Hurricane. “I love Hurricane and don’t want him setting hoof in your old barn. I’ll give you the money”, says John. Larry, in relying on that promise, demolishes his old barn and starts construction on the new barn. John then informs Larry that he has decided not to give him the money. Larry may be able to enforce John’s promise of $10,000. However, if Larry did not believe that John would give him the $10,000 but demolished his barn and started building a new one anyway, there would be no reliance and no enforcement of John’s promise.

To form a contact, the parties must also have a mutual understanding of the subject matter of the contract and the essential terms. Under a scenario where Hurricane had died two weeks before John offered to sell him to Larry, John knew of Hurricane’s demise, but Larry didn’t. John and Larry don’t have a mutual understanding. Additionally, there is likely inadequate consideration and possible fraud in this example. Larry thinks he’s getting a living horse for $70,000 and John knows otherwise but doesn’t tell Larry.

Contracts can be oral, but some must be in writing and signed by the person to be charged with the promises (e.g., contracts to loan money and contracts for the purchase and sale of real estate). Contracts can be formed through an email or text message exchange if such satisfies the elements of a contract.

Contracts range in complexity and terms. If you need help preparing, reviewing, understanding, enforcing, or defending a contract, consult with an experienced and qualified attorney.

If you’ve been hit by another car or truck, check to see if the driver is wearing a uniform or if the vehicle they are driving has company logos on it. In addition to the driver being held liable for his or her own negligence, their employer may also be liable if the driver was acting in the scope of their employment (in other words, if they are acting in the furtherance of the employer’s business). For example, if the defendant driver is making a delivery for his or her employer and hits you, he or she is probably acting within the scope of their employment. However, an employee is not acting within the scope of their employment if he or she departs from the furtherance of the employer’s business for a purpose of his or her own not connected with their employment and has not returned to the place of departure or to a place the employee is required to be in the performance of their duties. For example, if the defendant driver, while making a delivery, decides to run home to check on their dog and hits you pulling out of their driveway, the defendant driver would have deviated from the furtherance of his employer’s business. While the defendant driver is individually liable for his negligence, the employer would not be. If you have been injured in an automobile or truck accident, call Brian Cartwright at (940) 891-0003 to set up a cost-free consultation to discuss the facts of your case and determine what your rights are. I look forward to visiting with you next time. Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated, Martindale-Hubbell, Shareholder, Alagood Cartwright Burke PC.

With the recent snow storms in the Northeast, an interesting issue is raised that many people may not know about. Most people believe that if you slip and fall on ice outside of a store that you are entering, the owner is automatically liable to you, including for your medical expenses. Not necessarily so in Texas. In such instances, whether a premises owner/operator is liable to you will depend on the facts and circumstances of how that ice got there. To start with, it should be noted that premises owners and operators do owe a duty to keep their premises safe for invitees against conditions on the property that pose unreasonable risks of harm. This duty, however, does not render the business premises owner or operator an insurer of the invitee’s safety. Thus, to prevail as the invitee plaintiff in a slip-and-fall case, the injured person has to prove (1) actual or constructive knowledge of some condition on the premises by the owner/operator; (2) the condition posed an unreasonable risk of harm; (3) the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and (4) the owner/operator’s failure to use such care proximately caused the plaintiff’s injuries. Importantly, if you were the person who slipped and fell in the scenario that we have presented, you would have to show the ice upon which you fell was an unreasonably dangerous condition. If there was no unreasonably dangerous condition, then, as a matter of law, the store owner/operation owed you no duty, and you could not recover on your slip and fall claim. One could argue that ice as a matter of common sense automatically presents an unreasonably dangerous condition; however, this is not the law in Texas. Whether ice poses an unreasonably dangerous condition or not depends on how it got there. In Texas, courts hold that naturally occurring ice that accumulates without the assistance or involvement of unnatural contact is not an unreasonably dangerous condition sufficient to support a premises liability claim. A natural accumulation of ice is one that accumulates as a result of an act of nature, and an unnatural accumulation refers to causes and factors other than inclement weather conditions (i.e., to causes other than the meteorological forces of nature). So does that mean then that if the owner/operator takes any steps to remove any ice accumulations that he will then be liable, as opposed to just leaving the ice alone to avoid
liability? The answer is no. Salting, shoveling, or applying a chemical deicer to a natural ice accumulation does not transform it into an unnatural one. Courts typically hold that to find otherwise would punish business owners who, as a courtesy to invitees, attempt to make their premises safe. Similarly, ice that melts and later refreezes is still deemed a natural accumulation. In short, in order to hold an owner or operator of the business premises liable, you will have to establish that the presence of the ice was not the result of natural accumulation, which in some instances can be a difficult burden. To determine if you have a case, you need to consult with a qualified personal injury trial attorney. Therefore, please feel free to contact me at 940.891.0003 to set up a cost-free consultation to discuss your case. *Please note that this Blog applies only to invitees, and not licensees (for example, going to your neighbor’s for a social gathering) or trespassers, which impose different duties on the premises owner than in situations involving invitees. Again, you should consult with qualified counsel to determine if you fall within these categories and how such classifications may impact your case. I Iook forward to visiting with you next time.

Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated, Martindale-Hubbell, Shareholder, Alagood & Cartwright, P.C.

Getting along Our economy has changed a great deal over the past several decades, and today most people work in a service industry. These businesses deliver services to customers or clients with whom they create and maintain relationships. In those relationships, the business usually solves some problem for the customer. When a business’s essential function is solving problems, you would expect those businesses who are the least effective problem solvers to be the ones who get sued. However, failing to solve a customer’s problem is only one of the ingredients that leads to a lawsuit. Surprisingly, error rate alone is not a very good indicator of which businesses are likely to get sued and which are not.

When people get sued they will almost always ask themselves, why did this happen to me? There are many reasons lawsuits get filed. The person who has been sued may not have been able to control the circumstances that led to the suit. However, a significant cause of litigation may be easily controllable.

In his book Blink, Malcolm Gladwell writes about the observations of Alice Burkin, a medical malpractice lawyer. Ms. Burkin is quoted as saying “In all the years I have been in business, I’ve never had a potential client walk in and say, I really like this doctor, and I feel terrible about doing it, but I want to sue them.” In fact, Ms. Burkin’s clients had flatly refused to sue doctors they liked even when confronted with evidence that their injuries were that doctor’s fault.

Most lawsuits start with a call to a lawyer’s office. What precedes most of those calls is a relationship that is no longer working. A study of medical malpractice suits showed that the difference between doctors who had never been sued and those that had been sued multiple times was roughly three and a half minutes. That’s the difference in the amount of time the doctors who had never been sued (18.3 minutes per visit on average) spent with their patients versus the amount of time the doctors who had been sued on multiple occasions had spent with their patients (15 minutes per visit on average). What was happening during that time? According to the study, not much related to health care. Instead, the physicians were using that time to set expectations and to build a personal relationship with the patient.

For example, the physicians who had not been sued used orienting comments like “First, I’ll examine you then we’ll talk about your problem” or “l’ll leave time for your questions.” Also, the physicians that had not been sued more often laughed and made small talk with their patients during the visit.

As part of your business’s risk management strategy, you should consider the following: 1) Set clear expectations with customers/clients when starting a communication, 2) Make time to ensure that you have answered all of their questions (even ones that may have occurred to them during the call or meeting), and 3) Take the time to talk to customers about how they are, and laugh and joke with them when appropriate. Show some interest in their personal lives and not only the commercial transaction in which you are involved. If you do these things, your customers will probably like you (or like you more). In general, people don’t sue people they like.

Everyone makes mistakes. Sometimes those mistakes don’t hurt anyone. But when they do, the difference between a lawsuit being filed against you or not could be as little as three and a half minutes.

Samuel B. Burke is board certified in Civil Trial Law by the Texas Board of Legal Specialization. Sam can be reached at sburke@dentonlaw.com or http://www.dentonlaw.com.