Taking the Confusion Out of Common Injury and Estate Planning Worries: Answers to Your Frequent Questions

The most important job for any attorney is making sure that his client understands every aspect of her case. Although some lawyers are comfortable keeping their clients in the dark, we feel that you deserve more. You deserve to have all of your questions and concerns addressed in order to pursue your own case confidently and successfully. This is why we take the initiative to answer common questions that you may have even before you even step into our office. If you don't see your question answered below, please contact our office at 855-522-5291.

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  • What if I had Pain Prior to My Car Crash?

    One of the things an injured party must prove in a car accident claim is that the car accident actually caused the injury.  This is known as causation.  When someone suffers a broken bone or laceration as a result of a car accident, it is pretty easy to establish this causation requirement.  It can become a bit more difficult when there is a back or neck injury.
     
    With each year that passes by, we are exposed to more opportunities to injure ourselves.  It is not uncommon for individuals to injure their Pain Prior To A Car Accidentbacks or necks in one way or another throughout their lifetime.  Even when there is no specific injury, it is very likely that as we age, our spine will suffer from some form of arthritis.  This arthritis, also known as degeneration, can show up on x-rays, MRIs or CT scans.  It can cause us pain or can remain asymptomatic until trauma aggravates it to the point of causing pain.
     

    Will The At Fault Driver's Insurance Company Look Into Your Medical History Following A Car Accident?

     
    Typically, with neck and back injuries, the at-fault insurance company will argue that the person had a pre-existing condition prior to the crash.  The insurance adjuster will try to find prior radiological scans showing indications of prior problems or medical records showing prior complaints of pain.
     
    A skilled car accident attorney can deal with this issue effectively.  If a lot of time has passed from the last complaint of pain until the crash or from the last x-ray and the crash without intervening pain, there is a good argument that these prior pieces of evidence simply don't matter.  In Illinois, there is a helpful jury instruction on this issue.  Instruction 30.21 provides:
     
    If you decide for the plaintiff on the question of liability, you may not deny or limit the plaintiff's right to damages resulting from this occurrence because any injury resulted from EITHER an aggravation of a pre-existing condition or a pre-existing condition which rendered the plaintiff more susceptible to injury.
     
    This jury instruction is helpful because at a trial, the judge would read this to the jurors.  The jurors are not to reduce damages simply because the plaintiff had a prior back injury, for example.  Nor can the jury reduce damages because the plaintiff had a condition (a fragile spine from osteoporosis, for example), making future injury more likely.
     

    Can You Still Be Compensated Following A Car Accident Even With Prior Injuries?
     

    Sometimes, clients express concern that they will not be fully compensated following a crash because they had a prior injury.  It is important to know that a prior injury or medical condition does not necessarily reduce your ability to obtain full compensation for your injury.
     
    If you've been injured in a car accident you need to speak with an experienced car accident attorney as soon as possible. Please contact us online or call us at 855.522.5291 to schedule your free, no obligation consultation. 

  • What happens if I do not have a Will? Part 3: Administrators.

    Creating a Last Will And Testament is your chance to exercise your right to dictate how your Estate will be administered.  Generally speaking, the Last Will And Testament serves two main purposes:  first, you direct how your belongings and real estate will be distributed (and to whom your various assets will be distributed); and second, you select the person to serve as your Executor, meaning that you select the person in charge of your Estate.

    If your Estate does not qualify as a “Small Estate” and you do not have a valid Last Will And Testament, then someone will need to petition the Court to serve as an Administrator of your Estate.  The Probate Act of 1975 lists the order of preference for individuals to either serve as Administrator or appoint someone to serve as Administrator, starting with your spouse, then children, then grandchildren, then parents, then siblings and so on.  

    If a class of individuals all have the same preference and all wish to serve as the Administrator, the Court must select the individual(s) who will serve.  In other words, your children or parents or siblings might be left to argue amongst themselves, and in front of a Judge, about which of them should serve as the Administrator of your Estate.

    An Estate Attorney Can Help Greiving Families

    Unfortunately, grief brings out the worst side of many people.  Even generally reasonable people can find themselves at odds with other generally reasonable family members, if they are all left to figure things out on their own.  An estate plan (including a Last Will And Testament) allows you to give guidance and instruction, so as to minimize inter-family strife.

    If you are considering whether you should have a Last Will And Testament, likely the answer is yes. The attorneys of Tapella & Eberspacher LLC will gladly meet with you to discuss your options.  Please contact us today!

     

  • What happens if I do not have a Will? Part 2: Small Estates.

    Creating a Last Will And Testament is your chance to exercise your right to dictate how your Estate will be administered.  Generally speaking, the Last Will And Testament serves two main purposes:  first, you direct how your belongings and real estate will be distributed (and to whom your various assets will be distributed); and second, you select the person to serve as your Executor, meaning that you select the person in charge of your Estate.

    Signing Last willSmall Estate Affidavits may be used, regardless of whether you have a valid Last Will and Testament, if the total value of your estate does not exceed $100,000.00 and if either (a) any real estate which you owned was held in joint tenancy and/or held as tenants-by-the-entirety or (b) if the value of your interest in real estate is less than $2,500.00.  If you do not have a valid Last Will And Testament, appointing an Executor, and your Estate meets the statutory criteria for a “Small Estate,” then someone can self-select themselves to be “in charge” of your Estate and sign the Small Estate Affidavit and administer the Estate as they see fit, with little oversight.  

    "Small Estates" Adminstrators  

    The good news is that your heirs would have the right to sue anyone who wrongfully collects and/or wrongfully distributes the assets of your estate pursuant to a Small Estate Affidavit.  But that process takes time, effort, and often attorneys’ fees.  Your heirs would undoubtedly prefer that you select someone trustworthy to serve as your Executor from the start.

    In other words, even if your estate qualifies as a “Small Estate,” you and your family would likely benefit from you creating an estate plan.  The attorneys of Tapella & Eberspacher LLC will gladly meet with you to discuss your options.  Please contact us today!

     

  • What happens if I do not have a Will? Part 1: Distributions.

    Creating a Last Will And Testament is your chance to exercise your right to dictate how your Estate will be administered.  Generally speaking, the Last Will And Testament serves two main purposes:  first, you direct how your belongings and real estate will be distributed (and to whom your various assets will be distributed); and second, you select the person to serve as your Executor, meaning that you select the person in charge of your Estate.

    Regardless of whether you have a valid Last Will And Testament, all property that you own in joint tenancy (or real estate that you own as tenants-by-the-entirety), will automatically transfer to the other person(s) who co-own the property with you.  However, all property that you own outright – whether or not you were married at the time that you acquired that property – and all property that you own as tenants-in-common, must be distributed as part of your Estate.

    The Probate Act of 1975's Influence on Your Estate.

    If you are a resident of the State of Illinois and you die without having a valid Last Will And Testament, the default provisions in the Probate Act of 1975 will dictate how your Estate is administered.  For example, if you are married without any children, then your surviving spouse receives 100% of your Estate.  However, if you are married and you do have children, then your surviving spouse receives only ½ and your descendants receive the other ½, per stirpes.  Moreover, if you are not married and you do not have any children, then your parents and siblings each receive equal shares.  As the situation becomes more complicated, so do the applicable provisions of the Rules of Descent and Distribution.

    Any deviations that you would like to make from the rules of descent and distribution, including any gifts to step-children, step-parents, or friends, must be created as part of your estate plan.   

    If you are considering whether you should have a Last Will And Testament, likely the answer is yes. The attorneys of Tapella & Eberspacher LLC will gladly meet with you to discuss your options.  Please contact us today!

     

  • What does it cost to hire an attorney?

    Injured woman speaking to attorneyOne of the most frequent questions I receive when approached by a client with a potential personal injury claim is “how much is this going to cost me?” 

    The simple answer is that for a personal injury client, we don’t have to charge you anything at all up front in most circumstances.  That’s because our firm believes that personal injury claims should have what is called a “contingency fee contract.” 

    A contingency fee contract allows your attorneys to represent you without charging an hourly rate and without paying a large retainer.  The way it works is that we will only get paid if you get paid based upon a certain percentage. 

    In most cases, this percentage is 33% of the total recovery. 

    So, for example, if your personal injury motor vehicle case is resolved for $30,000.00, our fee, no matter how much time and effort we put into your case, will not exceed $10,000.00. A contingency fee contract is beneficial for a number of ways. 

    • First, there is no upfront cost, which can be especially difficult right after you suffer a major injury and may be off work for a period of time.
    • Second, you don’t have to worry about calling us whenever you have a question because you won’t be running up any bill.  We represent you, and always want to answer your questions and because of the contingency fee, we don’t have to worry about how much it will cost to have a conversation with you.  
    • Last, and most importantly, our interest is making sure you get the best outcome for your case possible.  In a contingency fee contract, you don’t need to worry about us dragging your case out in order to collect more fees.  You also don’t have to worry about us taking a discount in order to get your case resolved because the more money we put into your pocket, the more money we make as well.  When we work together on the same team, it creates a positive incentive to maximize the amount we share.

    It is important to note, that there are additional expenses sometimes that we charge in addition to the contingency fee contract.  For example, filing fees paid to the Court to begin your lawsuit, or paying for court reporters at a deposition, or paying hospitals for your medical records.  However, these additional fees typically work out to be a very small portion of the overall claim.  

    Contingency fee contracts are a wonderful way for us to represent clients in personal injury cases because it allows our interests to be aligned, and for our clients to feel connected to their attorney’s without having to pay an arm and a leg to get superior service. 

    If you ever have any questions about a personal injury claim, please feel free to contact us at 855-522-5291 to discuss how we can assist you in getting you through this difficult time. 

  • My neighbor's dog bit my child. What should I do?

    • Get medical attention- the sooner your child is seen, the better outcome will be.

    • Speak with the neighbors- find out if the dog is it up to date on all of its shots?  Has the dog had any prior attacks on other dogs or people?

    • Find any witnesses who may have seen what happened

    • Keep written documentation of the attack, the treatment, and any statements made by the owners or witnesses.

    • Contact an attorney as soon as possible so that they can investigate your claim​

  • When Can I Change My Child Support?

    Happy childrenOnce a judgment of dissolution of marriage is entered and a child support obligation is established, those who are ordered to pay child support, and those who are entitled to receive it, often wonder when, and under what circumstances, they can change the child support obligation.  As the statute for determining the amount of child support is set to change on July 1, 2017, it is also a good time to talk about modifying the child support obligation. 

    The child support obligation is modifiable at any time upon the showing of a “substantial change in circumstances.” 

    The most common change in circumstances is a change in the salary of the person paying the child support, whether it is a raise in their salary, or they have lost their job.  If the Judge determines that, at some point after the entry of the original judgment of dissolution, there has been such a substantial change in circumstances, the child support can be modified.

    In order to change the child support obligation, one party must file a petition with the court seeking the change in the child support obligation and must provide notice of that petition to the other party.  The timing of this petition becomes important.  Illinois law provides that the child support obligation can only be modified as to installments which accrue after the petition to modify is filed, and notice is provided to the other party.  This means that if a person receiving child support learns that the paying party has received a large raise in salary, but does not file the petition to increase the support the obligation for say… one year, they have forfeited that one year of increased child support.  The sitting Judge will have no discretion to modify the child support retroactively. 

    The Judge can only modify the support as of the date the petition to modify is filed, and notice is provided to the other party.

    This rule cuts both ways.  If a party is paying child support, and loses their job or suffers a large decrease in salary, but waits for that same one-year period to file a petition to modify the child support obligation downward, the Judge will have no option in that situation either.  The established child support amount will have to be paid by the paying party for that entire year, despite the fact that they have had a greatly reduced income.

    If you are paying or receiving child support, and you believe there has been a substantial change in circumstances which can affect the payment of the support, you should talk to an experienced attorney right away to determine if a petition to modify is appropriate, and when it should be filed. 

    The failure to do so can have severe consequences on your financial situation.

    Call us today at 855-522-5291, fill out our contact form, or chat with us 24/7 by clicking the button on the bottom right of your screen. 

  • What is a lien, and who can file one on me?

    A lien is something that anyone who has outstanding medical bills, or who has paid medical bills, can assert against a recovery that you may receive. 

    The lien allows them to make a claim to being owed a portion of your recovery to pay back medical bills or medical payments that were made on your behalf.  These liens can be significant if you required a lot of medical treatment.  It is always critical to let your attorney know if anyone asserts a lien against you, so that they can attempt to minimize the amount you will have to pay back to those who have a lien against your recovery.

  • What is the difference between a will and a trust?

    Many of my estate planning clients have done a little bit of homework before they scheduled an appointment with me.  They are aware of the term “trust” and the term “will,” but are usually not aware of what, if any difference there is between the two.  A “will” refers to a document which is created in accordance with the Illinois Probate Code (or other state law if outside of Illinois). 

    A will names a person to act as an executor, and gives instructions to the executor on what to do with the deceased person’s assets after that person is gone; usually to pay debts and taxes then distribute the rest of the assets to certain named persons or businesses (legatees). 

    Sometimes the administration, or probate, of a will can take a long time due to the type of assets which the deceased person owned.  For example, it sometimes takes years for a house to sell.  Other times a dispute makes the probate process last a long time.  James Brown died in 2006 but his estate was not closed until 2015 due to a dispute between family members about who should get his stuff.  However, the administration of an estate is generally finite.  The will becomes effective only after the will creator (the Testator) dies.  The executor then has specific named responsibilities, i.e. pay bills, sell real estate then distribute whatever is left over to legatees, and once those responsibilities are met the executor’s job is over.

    A trust is similar to a will in many ways, but is markedly different in that it can last much longer than a will.  A trust is governed by the Illinois Trusts and Trustees Act (or other state law if outside of Illinois). 

    A trust document names a Trustee and gives the Trustee instructions on how to care for and distribute the assets of the trust. 

    A trust can be created during one’s lifetime.  It can have specific trigger events (like the death of the trust maker) which will change how the trust is administered.  A trust can cover multiple generations of a family.  There are generally specific provisions in the Trust about when and how it will terminate, and those instructions do not necessarily coincide with the death of someone. 

    To put the matter simply, a trust is a way for people set rules on how to control how their assets are handled before, during, and sometimes long after their death.  A will describes how assets will pass at the time of someone’s death only, and will not control the assets long into the future unless there is some outside reason why the probate estate must stay open.

    Wills and Trusts can take many different forms. Most people who decide that a trust is right for them will also create a will that directs the executor to give all or some of their assets to the trustee after their death.  This is called a pour-over will.  Some wills even have a trust within them called a testamentary trust.  Trusts have a provision in them regarding how to split the assets after a certain trigger event happens that looks a lot like the distribution provisions of a will.  This article is a very cursory exploration into what wills and trusts are, and is not intended as legal advice.  If you would like to know more about wills or trusts, or are interested in setting up an appointment to determine which is right for you, please give our office a call at 217-639-7800 and set up an appointment for an estate planning consultation.

  • How long will it take to settle my case?

    I am sorry to answer this question with an “it depends.” 

    Whether and when a case settles or not depends on many factors but two are particularly important: first, the nature and extent of your injuries and, second, the amount insurance coverage that is available to address your injuries.

    For instance, in many unfortunate circumstances, there are very significant injuries and very little coverage to compensate for those injuries.  In those cases, the settlement can occur very quickly, but be less than satisfying. 

    On the other hand, where the damages or injuries are significant and there is also significant insurance coverage to address those damages, the case can tend to take some time.  There are financial reasons why that is the case.  if your case is worth a significant amount of money, the insurance company will delay settlement so as to maintain those funds in their account.  There is little financial incentive for them to rush the settlement.  Our job as your attorney is to push them and force the issue as aggressively as possible.

    One of the key questions you should ask about your attorney is: “will my attorney push my case?” 

    There are things that the attorney can control in the process and things that are beyond your attorney’s control.  For instance, the initial investigation and follow-up consultation with you are entirely within the attorney’s control.  Is your attorney moving quickly to gather medical bills, to assist you in submitting those bills, to gather police reports, 911 tapes, and witness information?  Has your attorney kept you informed of progress and consulted with you on your settlement options?  If not, you may have the wrong the attorney.

    One issue that your attorney cannot control is the pace of your recovery. 

    Your recovery may delay the settlement process.  While a full recovery is not necessary to settle a case, it can be important to understand your prognosis in evaluating the proper scope of damages.