What is Probate?

When a loved one passes away, the details can be overwhelming. Those left behind are suddenly confronted with a myriad of strange vocabulary to learn and figure out what to do with. One common word that you’ll begin hearing is “Probate.” So, what is probate, and do you need an attorney to help you with it?

Probate is the process of filing the will of a deceased loved one with the court, gathering their assets, paying off their liabilities, filing taxes, and closing out their estate. Simply put, probate is the court process that oversees the administration of an estate.

probate

The Purpose of Probate

The purpose of probate is to ensure that all of a deceased loved one’s debts are paid, and to make sure that their assets can be passed to their loved ones (“beneficiaries”) without any legal liability passing to their beneficiaries.

The Requirements of Probate

Probate requires that debts are paid in a certain order pursuant to a Pennsylvania statute, and limits the types of claims that can be brought against the person who has passed away. Probate also requires filing of tax returns to pay the Inheritance Tax for those who receive an inheritance from the person who passed. Usually, the estate pays this tax to avoid beneficiaries being saddled with the bill, although this depends on the Will.

Navigating the Probate Process

The Probate process can be confusing and, because it can be expensive, it is not always necessary to go through. A good Estate Administration Attorney will help you to see if there is any way to avoid the probate process altogether, as well as the fees and costs associated with it. However, in many cases, probate is required and is unavoidable.

If you know someone who has recently passed and you are trying to figure out how to administer their estate, call the Cornerstone Law Firm for a free consultation. We’ll be happy to sit down with you and discuss your options and to figure out the best way to administer your estate.

Default Judgment

When you fail to respond to a lawsuit filed against you, the court will grant the other party whatever relief they were seeking in their Complaint. This is known as a “default judgment.” In this post, we’ll discuss default judgments, and what you can do if you’ve found yourself dealing with one.

How Defaults Occur

When you’ve been served with a lawsuit, you typically have about thirty days to respond to that lawsuit (although this time varies depending on whether you are in state or federal court). If you don’t respond during that time, judgment will be entered against you in the amount of money claimed in the Complaint.

So, for example, if the complaint asked for $100,000, and you declined to answer, the court will assume that you had no problem with a $100,000 judgment entered against you. Admittedly, this is unlikely with a number that high, but there are plenty of times that someone may not really care about a complaint against them, because they figure the judgment is too small to fight about. They would rather give up, pay the amount to the person that holds the judgment, and move on with life.

The more common reason for a default judgment, however, is that the Defendant never learned of the lawsuit. For example, in some cases, the lawsuit may not have been properly served. In a common example in Pennsylvania, the person may have been served with a “Writ of Summons” which merely told them they were being sued but did not tell the Defendant what they were being sued for.

Unfortunately, many people allow these to simply sit around for a long time. One day, the Plaintiff mails the Defendant a Complaint or, in some cases, doesn’t mail it and claims that they did, and a default judgment is entered. The default judgment acts just like any other judgment. Once entered, it has binding effect on you and can be used to execute against your possessions. It is a serious and important problem, and you should act quickly upon learning of the judgment in order to avoid forfeiting any more of your rights.

When the judgment is entered, it has binding effect on you and can be used to execute against your possessions. It is a serious problem, and you should act quickly upon learning of the judgment in order to avoid forfeiting any more of your rights.

When No Money is Claimed

Many Complaints never state a claim for a precise amount of damages, however. There is no rule requiring that a Plaintiff calculate their precise damages when they file a suit. Many times, damages are determined during the course of discovery and trial.

Accordingly, most Complaints are filed without a specific claim for the amount of damages at issue. In this case, the Court will award judgment on liability, and then will set a trial for damages. Discovery and other processes will ensue to aid the parties in determining exactly how much is claimed.

Conclusion: Don’t Sit on a Default Judgment

If a default judgment has been entered against you, don’t ignore it. You may be able to move to have the judgment re-opened. In other cases, you may be able to limit the amount of damages, even if the default is irreversible. What you should not do is wait.

Contact an attorney at Cornerstone Law Firm today to discuss your case.

What is a Concurring or Dissenting Opinion?

It’s relatively frequent in the news that you hear about a “concurrence” or “dissent.” What does it mean when a Justice of the Supreme Court of the United States or a Judge of another Court issues a concurring or dissenting opinion?

To understand this, we have to look at a brief history of how higher court opinions came to be the way they are today in the United States.

Seriatim

In the early nineteenth century and before, the judges of higher courts (such as the Supreme Court) would issue their opinions “seriatim” (Latin for “separately”). This means that each judge would issue their own opinion about the case that had come before them, and it was up to the reader to figure out which opinion was the controlling, majority opinion to be followed in future cases.

Of course, sometimes this was difficult to do because judges about the same case may come to the same conclusion different ways or to slightly different conclusions. This was a confusing state of affairs, and it made it very difficult for lower courts to know which rule or which judge’s opinion they were supposed to follow.

When Chief Justice John Marshall joined the Supreme Court, he implemented a new policy whereby there was one Majority Opinion that was voted on or agreed to by the rest of the Justices who had voted in favor of the winning rule. Any other Justice was, of course, welcome to write their own opinion, either in support of the final judgment or expressing their displeasure with it. And thus, concurring and dissenting opinions were born.

What We Learn from Concurrences and Dissents

Today, concurrences and dissents carry no legal weight. They are typically not cited by lawyers in briefs arguing before any court, because they do not carry the force of law. They are however, persuasive in some cases, and especially so if written by a judge who has a good reputation among other judges and lawyers.

But primarily, concurrences and dissents tell us what the Justices think about an area of the law, and they often contain valuable clues as to what other cases they’re looking for, and what areas of law they wish to influence. Accordingly, these are heavily studied by appellate lawyers (that is, lawyers who handle appeals from a lower court judgment to a higher court), in determining what sorts of challenges in future cases might be appealing to one Judge or another.

This article has been part of our ongoing series about appellate law—the way in which lawyers and judges shape and influence the law by arguing before courts of appeals. If you have an appellate matter you wish to have reviewed, contact us today for a free consultation.

May 2019 Recap

Last month was a busy one for the Cornerstone Law Firm team. Attorney Crossett attended several Landlord-Tenant Hearings and helped evict tenants who were not paying rent or who had made dangerous advances against other residents of apartment complexes.

Attorney Ready helped to secure an Order for Possession of Property for a client that buys and sells real estate so that they could take possession of property that was being lived in by someone else. In addition, Attorneys Ready and Crossett handled several real estate agreements, and a real estate closing in our Blandon office.

Attorney Ready handled a jury trial for a client accused of Aggravated Assault with a Deadly Weapon, and received a verdict of Not Guilty on all counts. In addition, Attorney Ready negotiated favorable sentences and agreements for other clients.

In the middle of the month, the Cornerstone Law Firm team celebrated the Firm’s anniversary on May 21st. We continue to be grateful to Berks County residents for their business and support of our local work, and we’re honored to have the trust of clients all over the state and the country.

Our travels this month have taken us from Schuylkill, Lehigh, and Berks counties all the way out to Allegheny County this month, and has included appearances in a Maryland Court as well.

If you have need of legal services, we welcome your call to discuss your case.

Hail Damage

Hail storms, like the one we just experienced here in Berks County, Pennsylvania, can cause a surprising amount of damage in a very short time. Unfortunately, insurance companies often go out of their way to avoid paying for hail damage by pointing to various exclusions in contracts or otherwise claiming that the damage cannot be covered under the policy for one reason or another.

If you’ve sustained hail damage to your home or other property, here are a few things to consider in dealing with an insurance company on your damage claim.

Pennsylvania Law Requires that Insurance Contracts Be Conformed with the Reasonable Expectations of the Insurance Purchaser

If you purchased insurance on your home, the typical process is that you requested a policy, paid money in advance, and then received a massive stack of insurance documents in the mail. Unfortunately, what often happens in these situations is that the insurance policy that you received in the mail and maybe never even read, included all sorts of “exclusions” which limit your ability to recover in the event of hail or certain other natural disasters.

The Supreme Court of Pennsylvania and other Courts within the Commonwealth have grown skeptical of this practice of insurance companies, because it essentially acts to change the contract between the insured and the insurer. If you believe you are purchasing comprehensive coverage and the insurance company put exclusions to that coverage in the policy, courts will often ask whether you reasonably purchased that exclusion in the policy or whether the exclusion was an ineffective attempt by the insurance company to add it in after the contract had already been formed.

Some of these holdings have been called into question in recent years, and if all of this sounds a little bit complicated, don’t panic. The point is simple: just because an insurance company says there’s an exclusion in the policy that prohibits you from recovering from hail damage, that doesn’t mean the exclusion is necessarily legally binding.

You Are Entitled to Independent Valuation of the Damage

Another method that insurance companies sometimes employ to reduce the value of the claim that they have to pay out is by claiming that their adjuster’s evaluation of the damage is final and binding. This is not the case. You are entitled to have your own appraiser look at the damage and give you an assessment.

The proper value of hail damage may be difficult to determine, but having more than one opinion in regards to the damage can be helpful. In many cases, insurance companies and their claims adjusters do a good job of assessing the damage. In that case, there’s no need to pay for an appraiser.

But just keep in mind as you have your discussions with an insurance company that you’re entitled to your own second opinion if you wish to pay for one.

The Value of the Damage May Be Reduced by the Age of The Roof or Other Property Involved

Most insurance policies provide that the value of replacing the roof must be diminished by the percentage of a typical roof’s lifespan that has elapsed on the house.

In other words, if you have a thirty-year roof on your house and your twenty years in to the thirty-year roof when the hail damage occurs, the insurance company will only pay out a third of the value of a new roof. This is generally a valid limitation, but it depends on circumstances and the precise policy language involved.

Conclusion

At Cornerstone Law Firm, we deal with insurance companies every day. Our attorneys have experience in negotiating and litigating the proper amount of insurance pay-out on damages.

If you feel you’re not getting the proper value on your insurance claim, call our attorneys for a free consultation on your case.