Follow by Email

Search This Blog

Welcome to a Discussion of Legal Issues Facing North Carolinians

This blog does not create an attorney client relationship. You should not rely on this information for advice. If you have a legal question you should contact an attorney.

Tuesday, February 16, 2010

Estate Administration: Qualifying as Administrator

In North Carolina, if a person dies without a Will, that person is said to have died "intestate," and the Administrator is the person who handles the deceased person's (decedent's) estate. If the person died with an original of his/her last Will, that person has died "testate," and the Executor named in the Will would be handling the estate.

This is the most important distinction to make before going through the steps of handling a deceased person's estate. A thorough search should be done to determine whether the decedent left a Will. If there is no Will, and you wish to qualify as Administrator of the decedent's estate, there is a specific protocol you must follow in order to do so.

You must first apply to the clerk of superior court on a form provided by the clerk's office called, Application For Letters of Administration. Letters of Administration are the official written authorization to carry out the responsibilities as Administrator of the estate. This application form calls for a preliminary inventory of all assets of the decedent as of the date of death. This is important because that means you as the applicant must have a general knowledge of the decedent's real estate, bank accounts, stocks, bonds, cars, and other personal property. You must also estimate the value of these assets to complete the application.

Also, the clerk will grant letters of administration to a person who applies and is qualified to serve in the following order:
(1) Surviving spouse, (2) Anyone who is to receive property as indicated by Will, (3) Anyone entitled to receive property by law (w/o Will), (4) Any next of kin, (5) Any creditor to whom decedent became obligated prior to death, (6) Any person of good character residing in the county who applies with the clerk of superior court.

You must also take an oath or make an affirmation to carry out all the duties as Administrator faithfully and honestly, and in most circumstances you will need to furnish a bond as Administrator.

This is only the very beginning of the process. Most estate administration is very time consuming and can become quite complex. If you have never handled an estate before it may be a good idea to seek attorney assitance to help guide you through the process.

This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.

Wednesday, February 10, 2010

The Importance of Knowing Your Automobile Insurance Coverages

In North Carolina there are basically six types of typical automobile insurance coverage.  (1) there is liability coverage which pays others that you might hurt with your car.  Currently, the minimum limits are 30K per person up to 60K per accident; (2) there is property damage liability coverage to repair someone's car you have had struck; (3) there is collision coverage which will pay for your car's damage - even if it is your fault.  Collision coverage is not required by law - but may be required by the lender who loaned you the money to buy the car; (4) there is optional medical payments coverage ("medpay") which operates as a small health insurance policy if you are injured in an accident - regardless of whose fault it was.  It does not increase your premiums.  Typical limits are 1K to 5K; (5) there is uninsured coverage known as UM coverage.  This will pay for your car if you are struck by an uninsured or hit and run driver; (6) lastly there is underinsurance coverage (known as UIM).  This is very important coverage.  If you buy UIM coverage it means that regardless of the amount of coverage of the person who caused your accident, you and your family members can never have less protection that the limits of the UIM policy you bought.  There are special regulations about how to apply for UIM coverage.  If you are in a serious accident, you should take your own automobile insurance policy to a knowledgeable attorney and have him explain the policy to you.

This blog does not create an attorney-client relationship. You should not rely upon this blog for legal advice, but instead should consult an attorney experienced in your area of concern.

Tuesday, February 2, 2010

Corporations Must Be Represented By Counsel

If you own a corporation, company, small business, or some other organization and you feel you have been wronged or you wish to file a lawsuit . . . hire an attorney. In North Carolina, a corporation cannot appear pro se (without an attorney) and must be represented by a licensed attorney in order to bring a claim against an individual or another corporation. Unless you are appearing in Small Claims Court for under the sum of $5,000, or you are appearing to avoid Default Judgment, you need an attorney to represent your company or corporation.

Monday, February 1, 2010

Statute of Limitation

Your right to a legal recovery from someone is not unlimited. States imposes a time limit by which you must seek recovery. As a general rule, the only way to stop the statute of limitations from expiring is to file a lawsuit. There are different statutes of limitation depending on the type of action you may have. For example, in a wrongful death action you have two years from the date of death to file suit. In an ordinary negligence action, you have three years to resolve the claim or file suit. This is also true in a breach of contract action. When the statute of limitations begins to run in contract disputes, medical negligence (malpractice) and fraud cases can be complicated and depend on different factors. For example, if you need to file a lien for nonpayment in a construction dispute, you must file the lien within 120 days and file suit to perfect the lien within 180 days of the date you were last on the job.

If you have been wronged, a consultation with an attorney regarding your rights is always a good idea.

Negligent Truck Maintenance

Driving adjacent to or even near a tractor trailer represents one of the largest fears of the driving public. Simple physics and common sense suggest that if your mini cooper and a tractor trailer collide, your chances of walking away unscathed are remote. However, in my experience, for the vast majority of these truck drivers, I am amazed with their skill in controlling their vehicle. However, their ability to drive and ability to maintain their vehicle are two separate notions.

Driving skill is irrelevant when carriers and their drivers fail to properly inspect, light, clean, and otherwise maintain their tractors and trailers. Take a stroll down I-40 or I-77 in the evening and you're likely to find a host of violations of the Federal Motor Carrier Safety Regulations. Such regulations require, among other things, that all trailers be equipped with specific reflective stripping. The stripping is an alternating red and white pattern that must extend along the entire width of the trailer's rear, and must (in total) extend at least halfway down the length of the trailer. There are also requirements that these reflectors be continually cleaned and replaced as needed. The purpose of these reflectors is to give oncoming and passing motorists an idea of the size and bounds of the tractor and/or trailer. Even a minor collision between an average sized car and a tractor trailer can have a devastating result. Thus, trucking carriers and their drivers need to adequately light, clean, and routinely inspect their vehicles to ensure they are in compliance with the Motor Carrier Requirements - to save lives and escape liability.

Consequences of Writing a Worthless Check (NC)

If you are like me, then there are times in your hectic life when you aren't quite sure exactly how much money you have in your checking account. In an age where electronic bank statements (e-statements) are the usual way people check account balances, it is easy to lose track of how much you have, or more importantly, how much you don't have. Add to that the number of days it takes for some credit card companies to process funds, or how long it takes "Aunt Millie" to deposit the $500 check you wrote her, and it can be rather simple to overdraft or write a check that bounces. For those of you where this applies, I warn you to be very cautious of those checks you are writing. The consequences of writing a bad or worthless check in NC are much steeper than you might think.

In North Carolina it is against the law for any person or corporation to make, draw, or deliver any check for a certain sum of money, knowing at the time of making there were insufficient funds for the check. If the amount of the check is over $100 the person is guilty of a Class 2 Misdemeanor, if it is over $2,000 it is a Class 1 Felony.

I know what some of you may be are thinking that if you are unsure of how much you have in your checking account when you write the check, then you can argue you didn't know you had insufficient funds. However, "knowledge" of writing a worthless check is ordinarily proved by circumstances from which it may be inferred. For example, if you have written bad checks in the past or if you wrote a check immediately after depositing certain funds in your account, with knowledge that it takes awhile for your bank to process deposited funds, you may be guilty of a misdemeanor or a felony. If the evidence draws an inference that you knew you were writing a worthless check, you may be criminally liable.

Also, the act of writing the worthless check is enough to give the State probable cause to believe the person charged is guilty of the crime. Unfortunately, paying off a worthless check after a person is charged with the crime is immaterial to the determination of whether probable cause existed to initiate a worthless check proceeding.

Moral of this story: Don't write worthless checks!

5 Ways to protect yourself:
1.) Keep up-to-date records of everything you buy, not just what's on the E-statement.
2.) Always check your bank account before writing a check, especially one over $2,000.
3.) Don't write any checks from closed accounts.
4.) If someone tells you they are just holding the check and won't deposit it, don't believe them or if you do, make sure you have the funds...Believing somebody won't deposit it is not a defense to writing a worthless check.
5.) If you have written a worthless check and haven't yet been charged, either see an attorney or make every effort to pay off the entire amount of the check as soon as possible.

Trees are beautiful but dangerous

In the past two years our firm has handled two death resulting from falling trees. In both instances there was a failure to inspect and remove the tree after telltale signs of rot and decay existed. Many times the dangerousness of the tree can only be detected by professional arborists. To avoid liability, and more importantly injury to others, be proactive in evaluating the large trees on your property. These trees can weigh more than 60 tons and easily can crush a car or almost anything else in its way.