Protecting Your Most Important Asset

Summer is fast approaching.  With school about to get out, people shift their focus away from conflict, and narrow in on their family and loved ones.  The same shift occurs in the legal field as potential clients think less about litigation and more about the people who are most important to them.  For that reason, I am focusing this article on protecting those most important assets in our lives, our loved ones.

When I ask people if they have an estate plan, most people ask me what an estate plan is.  “Is that like a trust or a will?”  Together with not knowing what exactly an estate plan is, most people I speak with do not think they need a plan until they are old and rich.  Let me clarify what an estate plan is and who should really have an estate plan.

An estate plan consists of several documents which protect different parts of your overall estate.  For example, most basic estate plans will include a trust, a pour-over will, a power of attorney, and a health care directive. Generally speaking, a trust will protect your property, a will protects your children, a power of attorney assists you, and a health care directive ensures your health care needs are cared for properly in the event you are unable to speak for yourself.

I think we can all agree that our most important assets are our children.  If you have minor children, you need an estate plan.  As mentioned above, a will provides for who and how your children will be cared for in the event both you and your spouse pass away.  I understand that the thought is almost unthinkable, but imagine if the unthinkable occurs, and you have left no direction for who should care for your children and how they should be cared for?

A will can provide for who will take care of your children in the event you and your spouse are no longer around to do so.  Your trust can create trusts with rules to ensure that any assets and insurance money you leave to provide financially for your children are used properly to meet your children’s needs.  By creating an estate plan you can avoid placing your relatives or close friends in a position where they have to fight over your children.  Your will gives the Court direction on how and who you wanted to care for your children, so that the Court, which knows little about your children or your relatives, is not forced to simply make a decision about the custody of your children.  If, for example, you trust the care and upbringing to one relative who is really good with children, but would prefer your other relative who is a CPA to handle your children’s finances, you can do that.  Your preference will be strongly considered by the Court in determining who cares for your children if you are no longer able.  If you do not leave direction, then your relatives are left to petition the court and argue over who should be the caregiver of your children.  Why would you ever allow someone else to decide who cares for your children?

So as we approach the summer season, consider creating an estate plan to ensure that your most important assets, your children, are protected in the event the unthinkable occurs.

About the Author:  Ammon G. Nelson currently sits on the Board of the Weber Davis Estate Planning Council.  He has created estate plans for people with a house and minor children, for people with multi-million dollar estates, and for people with estates somewhere in the middle. If you have questions about creating an estate plan for your family, you can call Ammon Nelson Law at 801-668-2490.

Tips on What to do If You are in a Car Accident

I help people who have been injured in car accidents.  The moments after a car accident are stressful and overwhelming.  Here are a few tips on what to do if you are in a car accident that may help your injury case:

Always call for medical help if someone is injured.  The health and well being of everyone involved should be everyone’s priority.

Call the police.  The police will take statements and document important information.

Take pictures and notes.  Take pictures of the accident from several different angles.  Take pictures of anything that may have caused the accident.  Document the license plate number, make, model, and year of the other vehicle.  Document the weather, time of day, names and addresses of any witnesses (passengers are not witnesses), and draw a diagram of how you believe the accident.

Never blame anyone, including yourself, for the accident.  Admitting guilt could hurt your case, and in reality, you may not have been the cause of the accident.

Do not speak to anyone from the other party’s insurance company.  They record all of your statements, and they sometimes try to trick you into admitting guilt.  Those statements could hurt your case.

NEVER sign anything given you by an insurance company.

Do not leave the scene of the accident until the Police say it is ok.

You should call an attorney as soon as you are able after an accident.  The earlier your attorney is involved, the better he/she will be able to advise you and protect your case.  When choosing an attorney you should look for an attorney who will handle the claim himself, and not pass it off to a paralegal.  Look for an attorney who is willing to deal with the insurance adjusters for you, personally analyze you medical bills, who will help you settle your personal property damage claim, and who will put you first.  I work hard for my clients, no matter the value of their case.  It is important to me that they heal, and that they are compensated for injuries they suffer because of the negligence of another.  If you know someone who has been injured, give me a call!

Children 

One of the most important and emotionally charged issues of a divorce is who will have  custody of the children.  If you do not have children, your divorce will probably be more straight forward.  If you have children, there are some things you need to know as you start down the path of divorce.  You need to know how courts think about children, how child support works, and how a parent’s behavior can hurt their chances of being awarded time with their children.

• Custody:  Courts look at the best interest of the children when determining custody.  Two types of custody exists: Physical and Legal.  Physical custody is who the child lives with most of the time.  When considering physical custody, the Court wants to make sure the children are placed in a home where they are safe and able to thrive emotionally, intellectually, and physically.  The court considers a long list of factors when determining which parent should have physical custody of the children, how much time each parent should have with the children, and whether both parents should have a say in decisions regarding the children.  Legal custody is who gets to make decisions regarding the children.  The State of Utah pretty much assumes both parents are capable of working together to make decisions regarding their children.  That presumption can be rebutted if you have a good reason.

• Child Support:  Child support is a calculation based on Utah state statute.  There is a calculator provided by the Department of Health at https://orscsc.dhs.utah.gov/orscscapphs/orscscweb/action/public/custodyWorksheet/show.  While the amount can be adjusted slightly if negotiated correctly, in general, the amount of child support a person will pay is pretty fixed by the statute.  The basic calculation takes into account your gross monthly income, your spouse’s gross monthly income, the number of children from the marriage, how many overnights each party has with the children, and whether either party pays support to other children.  Usually, the parent who has the children the least amount of time is the parent ordered to pay child support.  I wish I were able to outline all of the ways child support can be manipulated, but this Guide would become more of a text book than a guide if I were to do so.

• Your Behavior:  Your behavior during the marriage, immediately prior to your divorce, and during your divorce can affect your case for custody of your children.  The Court generally does not like it when parents are addicted to drugs or alcohol, abuse their spouse or children, have recent criminal histories, leave their young children home unsupervised, do not have proper living arrangements for children, do not support their children, abuse their spouse in front of the children, leave the children with a mistress or girlfriend/boyfriend, move in with a significant other with a criminal record or addiction, or do anything else with the children that is not age appropriate or which brings into question your ability to keep the children safe and healthy.  As with all things in a divorce, your exact circumstances are unique and how a court will deal with your situation depends on state law, case law, and what the Court feels is equitable.  As mentioned above, you can access cases at the local law library, or you can discuss your case with an attorney.

• Effects on Children:  Divorce effects all children differently.  I am not a psychologist, but there are several things you can do to minimize the negative effects of your divorce on your children and help your legal case.  If you and your spouse have been fighting in front of the children, then the possible negative effects of the divorce have already started.  There are ways to minimize the damage a divorce can have on children.  Here are a few guidelines to follow: 1) Never talk negatively about your spouse to your children or in front of your children (besides being detrimental to your child’s psychological well-being, the courts do not like it); 2) Respect the fact that your child loves your spouse, even though you may not; 3) Consider making a psychologist available to your child so that the child has someone to talk to who is not involved in your divorce; 4) Consider reading the Co–Parenting Survival Guide by Elizabeth Thayer Ph.D and Jeffrey Zimmerman Ph.D (This book is often recommended by one of the Utah Second District Court Judges from the Ogden Department); 5) Maintain your own psychological and physical health.  It is really hard on children when their parent is stressed out, depressed, or unable to be there for there for them.