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Hottenroth, Garverick, Tilson & Garverick Law Blog

Choosing an estate plan executor

An estate plan is the optimal way to protect your family’s financial security in the long term. It creates a map for handling your estate and distributing assets after you’ve passed. There are many ways to set up your will and testament to plan ahead. To make sure those carefully made plans happen, you’ll need to carefully choose an executor to your estate. You can choose a primary executor, a back up, or a co-executor.

Should a lawyer be involved in my real estate closing?

Generally, the answer to this question is YES. Real estate closings typically can involve some of the largest dollar transactions in a person's life yet, it seems that many people avoid using lawyers in such transactions, and appear to be much more prone to use the services of lawyers in transactions involving far fewer dollars! Not only do we recommend that our clients discuss real estate transactions with their attorneys before entering into contracts to sell or buy real estate, we also recommend that they keep their attorneys involved until after the transactions are closed. Innumerable potential problems can arise, many of which will legitimately require advice or other services from a trained and licensed attorney. These can include, but certainly are not limited to the following: a problem with an easement, difficulties with tax liens, inaccurate legal descriptions, incorrectly executed documents to prior owners of the property, court orders affecting title to or the use of the property, restrictions on property use, entitlement to appliances located in the real estate, possession of window treatments, antennas and rotors, etc. And, even at closings issues can arise like inappropriate crediting of costs or expenses, improper charge backs, improper execution of documents, etc. I know I have said this before on a lot of occasions, but it seems to me that there are many people who are very quick to seek the services of a lawyer when they buy a relatively small item (like a vacuum cleaner, bicycle, used car, etc.) who are for some reason much more reluctant to consult lawyers with transactions as major as purchasing or selling a home. I think it makes good practical common sense generally for people to consult lawyers when they are contemplating engaging in real estate transactions, and through the process of acquisition and financing homes and land.

Am I properly protected when, after I sign a contract, I take it to my lawyer to review it?

That one is a loaded question in many ways. But, usually the answer to that is a big NO! All too often, once a contract has been signed, the terms have already been legally agreed upon, and are not subject to modification unless both parties agree. In fact, many times the agreement needs to be in writing before a modification is even enforceable. Generally speaking, the best way to avoid pitfalls related to early execution of documents, is to check with your legal counsel before you sign them!

Witnesses

The American justice system depends upon testimony of witnesses. Most testimony is handled orally, but there are some situations in which it is done in writing. If you have a case in which a lawyer is representing you, and you are a Plaintiff, Defendant, Movant, Respondent, etc., the odds are that you will need to be a witness in your own case. You will probably be requested to give oral testimony, which more often than not will involve you answering questions presented to you by lawyers on both sides of your case. If you are not a party in the case, you may still be called upon to answer questions as a non-party witness, to clarify the facts for the aid of the Court. You may be called as a witness by one side or the other, or in some cases both.If you receive a request to testify, it would be wise for you to discuss the matter with your own attorney to determine what your responsibilities, rights and obligations may be. When you testify in a Court proceeding, you will be under oath. You are required to tell the truth. It is not appropriate for you to guess, exaggerate, or to fabricate facts that don't exist. If you are asked a question that is not clear to you, it is generally permissible to ask for clarification. It is important that witnesses understand what is being requested.Always remember that a person who lies while giving Court testimony may be charged with the crime of perjury, which is quite serious.Sometimes witnesses are asked questions which are difficult, and which may lead one to anger. However, raising your voice at a lawyer or Judge in a Court proceeding, being critical of the Court or counsel, etc., is inappropriate. When testifying, you should always focus on the question and the answer, and tell the truth. If you don't know the answer, you should say so.Many people feel that they are being asked to go above and beyond the call of duty when they receive requests to testify. Sometimes, that may be the case. However, having the ability to question witnesses is one of the hallmarks of our legal system, and often is very necessary to the orderly administration of justice in America.Many times, acting as a witness can be a very responsible thing for an American citizen to do. If in doubt about your rights or your obligations, we suggest that you should consult your attorney.

Question: I hired a lawyer in the hope that she would be able to get my case settled, but she hasn't. Does this mean she is doing a bad job?

Well, I have heard this sort of thing before. And what is interesting is that sometimes I have heard the following sorts of inconsistent statements come from the same person: "My lawyer keeps charging me to attend more and more depositions and hearings and is doing more and more work;" "My lawyer wants me to settle for less than I think I should receive." Frankly, these sorts of comments are a lot more typical than one might assume. I have seen a lot of people take unreasonable settlement positions and demand that their attorneys hold tight without "giving in" in negotiations. And, those same people act almost as if they are surprised when the lawyer is not able to settle the case on what may appear to the lawyer to be an unfair position to begin with. Then, when the lawyer has to do a lot of additional work to have the case litigated, the client is upset. A case can only settle when both sides agree, and if they don't agree, the logical outgrowth of that situation is for the case to take longer and involve a lot more work on the part of the attorneys. So, in many situations where a client would like to reduce the amount of time and money involved in litigating a case, the best way to do that may be to adopt a less demanding settlement posture. It is not my contention that people should generally settle cases for less than they are due, but I firmly believe that many cases can be settled on a "win-win" basis if both parties are reasonable and are willing to compromise fairly. That is not always the case, obviously, but it frequently is.

What are some problems you encounter in connection with child custody cases?

I will give a few observations, based on a number of years of experience. These are my opinion, and some may disagree with me. 1. "Dumping on" the other parent verbally, in writing, in emails, through third persons, etc., is hardly ever constructive. It can be very damaging when done in the presence of the child who is involved in the litigation. Not only can it skew the child's perception of both parents, but it can, and often does, have the opposite of the intended effect. I often ask clients in these sorts of proceedings how they would have felt if they had heard this kind of thing from their own parents.
2. Drugs and drinking. I don't know why, but it seems to me that excessive use of alcohol and drugs (both "legal" and "illegal") is becoming and more of a problem in custody cases. There is no excuse for a parent who is seeking custody of a child, or more parenting time, to engage in irresponsible use of substances, whether or not they are "legal" ones. If a person really expects to win more "rights" with regard to his or her child, it is axiomatic that that person should exercise substantial responsibility.
3. How involved should the parent be in the child's everyday life? People who are seeking the role of caregiver of children need to be quite involved with the children in most respects. This involves school, going to the doctor and dentist, transportation, nutrition, etc. For a parent to say that she or he doesn't even know the name of the child's teacher or coach is often indicative of a less than responsible relationship between the parent and child. It is important for a parent to prove to a court's satisfaction that he or she is fully engaged in the life of the child.
4. Why should "I" as a parent have to communicate with my ex-spouse? Why can't I just let the child arrange for parenting time? It is amazing how many times I have heard these questions and questions like them. It is a veritable "catch 22" for the child. If parents cannot even get along enough to be able to arrange plans for sporting events, turnover times, etc., what does this teach the child about how she should deal with her children's other parent in the future? Beyond that, though, how secure would a typical child feel if continually placed in between her parents? It simply is not fair to the child to be put in a position of dealing with difficult arrangements that her adult parents are not even capable of working through! If parents are not able to communicate with each other on these matters, it may be appropriate for them to consider counseling, and even to seek the aid of a court to order counseling.
5. What should people do when they have questions about child custody? One of the first things I think people should do in most of those instances is make an appointment with a lawyer to consider the questions. While the Child Support Enforcement Agency, the Children Services folks, school authorities, and others may be able to provide some help, none of those sorts of entities is an appropriate source of legal advice for moms and dads who are engaged in these sorts of problems. Even if one or more of these agencies may be involved, it is still important for parents to understand their rights and obligations, so it is often wise to consult with counsel in such matters.

Is probate bad?

My personal feeling is that the opposite is pretty much accurate in most situations! Probate is often very good. The probate courts in Ohio have varied jurisdiction, and that includes matters involving adoptions, guardianships, decedents' estates, filing of wills, etc. But there seems to be a lot of hub-bub these days about people wanting to "avoid probate." Generally, if a spouse dies leaving another spouse to whom she or he wants everything to go at death, there are a number of ways that transfers often can be accomplished without property going "through" probate. This may involve using "transfer on death" devices, setting up accounts with "payable on death" beneficiaries, etc.
But, especially in situations where things are unclear, where there is not a surviving spouse or where there is neither a surviving spouse nor surviving children, having property go "through" probate can be a great benefit. When property goes through probate, it needs to be valued and inventoried, it needs to be passed according to a will or statutory provisions, and the process is overseen by a court. This overseeing role is of great benefit in helping to normalize transfers, and render them legally appropriate. In other words, having the benefit of a probate court can be a wonderful thing from the standpoint of ensuring that things are more appropriately and more fairly handled. Is it always necessary in every case? Clearly it is not always necessary in every case, but in situations where people have questions about the best way to proceed, it is appropriate to bring them up with their attorneys. Planning for death may not be a fun thing, but it is an appropriate thing for people to do. It is wise to seek the services of your lawyer on such matters, often frequently, to continue to fine-tune your plans, and hopefully to avoid problems for your heirs when you are gone.

Is it true that if I pay something every month, my creditor cannot pursue me in a Court case?

This question is one I have heard more often than just about any other in my 40-plus years of law practice. In most situations, the answer is a very definite NO. This kind of question most often has come up in situations where a client owes a large amount of money, a bill collector is demanding a correspondingly large amount of payment, and the client feels that by sending $10 or $20 each month, that should stall the bill collector from being able to file a Court case. Ordinarily, the only time making a regular payment will prevent the other side from having rights to take you to Court will be a situation where you have an agreement to make a regular payment in that amount. While it is true that a creditor must credit your account with whatever payments it has accepted from you, it is also true that in many situations the creditor is not required to accept a small payment, and the fact that you tender a small payment does very little to mitigate the situation. If you have a question about this sort of thing, it is appropriate to raise it with your lawyer. 

If I borrow money or charge something on a credit card, and then do not pay for it, can the other side pursue me if I have not given some kind of collateral?

Generally, a creditor who does have rights in collateral has a more secure position than a creditor who does not, but the mere fact that a creditor has no collateral does not mean that it cannot pursue a debtor for money loaned or charged. I have had several people ask me questions about this during my practice, and I have been surprised by the level of misunderstanding I have encountered on this subject. If in doubt, debtors should consult counsel concerning their rights and obligations on such things.

Isn't it true that the Judge will protect me if I don't hire a lawyer to represent me in a divorce case my spouse has filed against me?

This is another question I have heard on numerous occasions. The fact is that the Judge cannot give legal advice to you, cannot represent you, and must follow strict legal guidelines in the handling of the case. The Judge is the person in the middle, and is the authority on things like what evidence will be introduced, what questions will be allowed to be asked, what decisions will be rendered, etc. Not only is it illegal for the Judge to offer legal advice to you, but it would seriously compromise the position of the Court if she or he were even allowed to do that (which she or he is not allowed to do). My personal opinion is that it always makes sense to talk to a lawyer before making a decision as to whether you should represent yourself in any legal proceedings. More times than not, I think it is a mistake to try to do it on your own.

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Hottenroth, Garverick, Tilson & Garverick, Co., L.P.A.
126 S. Market St.
Galion, OH 44833

Phone: 419-468-5044
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