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 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. 

  • I was in a wreck. Will the other driver lose their home?

    If you have been injured in a car crash, you likely have a claim against the driver of the car that caused your injuries. 

    Sometimes, this “at-fault” driver is an individual you don’t know and sometimes it is someone you do know (if you were the passenger in the car).  Either way, my clients oftentimes ask me if filing a claim for injuries is going to “harm” this other person.

    When you make a claim against the negligent driver, that person’s insurance company is responsible for providing them with a defense of claim and also paying for what they are liable for. 

    If you are unable to reach a settlement with the at-fault driver’s insurance company, you will have to file a lawsuit and the defendant will be the at-fault driver.  However, the same holds true – the insurance company will be paying for the defense and for any jury verdict.  So typically, when you make a claim against the other driver, it is the insurance company that pays, not the driver himself.

    There are times, of course, when this isn’t true.  If the at-fault driver didn’t have insurance at all (in violation of the law) or didn’t have enough insurance at the time of the crash, you do have every right to try to get a verdict against that person and then try to collect the money awarded from the verdict.  Also, sometimes, the at-fault driver’s insurance company doesn’t properly protect his interests.  In these circumstances, the individual’s personal assets may indeed be at risk.

    If you are injured in a car crash, you should definitely consult with an attorney who can fully explain what would happen if you file a claim.

  • Do I have to use the proceeds from my settlement to pay my medical bills?

    When it is time for you to settle your case or take it to trial, you and your attorney will revisit your incurred medical bills issue. If your medical bills remain unpaid at the time your case is resolved, the proceeds of the case will likely be used to pay your bills. 

    While you might be able to choose to not pay your medical bills with the case proceeds, you are ultimately responsible for the payment of the medical bills. 

    As such, your attorney will likely suggest that you pay them with the funds.  Often times, your attorney can work with your medical providers and have your outstanding bills reduced so that you can pocket more money.

    If your medical bills were paid by MedPay, typically in Illinois, the insurance company who paid those bills on your behalf is entitled to their money back.  While it may sound like it doesn’t make sense then to use MedPay at all, it is still wise to do so for a couple of reasons.  First, using your MedPay funds will allow you to pay off your unpaid medical bills and avoid collections.  Second, your attorney can likely get a reduction on what needs to be paid back to the MedPay carrier.  In Missouri, the news is even better because state law prohibits the MedPay carrier from seeking reimbursement. 

    In other words, in Missouri, you don't have to pay MedPay money back.

    If your bills were paid by health insurance, your attorney will have to review your contract with your health insurance carrier.  Typically, when you sign up for your health insurance, whether you know it or not, you agree to pay back your carrier if they pay your bills and then you collect from the at-fault driver. 

    How much you have to pay back depends on how your contract reads.

    As with the unpaid medical bills and MedPay, sometimes, your attorney can get that amount reduced.  The medical bills issue can be difficult to navigate - it helps to have an attorney guide you.

  • I'm being sent to collections for unpaid medical bills from a crash that wasn't my fault. Shouldn't the at-fault driver's insurance be paying these?

    As a personal injury attorney, my clients are often concerned about their medical bills after a crash or other injury suffered as a result of someone’s negligence.  I want to provide some information about this issue.  While it seems like they should, the at-fault insurance carrier does not pay your bills as they come due - they reimburse you, or your health insurance company, for your incurred medical bills at the time the case resolves.  Sometimes injured individuals will treat for a year or more.  This means that medical bills can go unpaid for that period of time too.

    I have seen situations where my clients’ injuries are so severe that the patient is unable to provide health insurance information at the hospital’s emergency room.  This certainly happens when the client is unconscious at the time of transfer.  Because the insurance information is not provided to the medical provider, the medical bills grow.  Sometimes, these medical bills are sent to collections and can damage credit scores.  This is obviously unfortunate considering the bills should have and could have been paid.  If you have been injured, always make sure you you’re your medical providers to bill your health insurance.  You should make sure your family members know this so that they can help you in case you are unable to pass on the insurance information yourself.  If you have been to a medical provider immediately following a car crash or other injury and you aren’t sure if the provider has your health insurance information, call the medical provider now.  Often times, the provider has a limited amount of time to properly submit your bills to insurance.

    As you are treating for your injuries, make sure you submit your bills to your health insurance company. Sometimes, the medical providers will see that your injuries were caused by a car crash and will try to bill the at fault driver's insurance.  Unfortunately, while the medical provider may mean well, this puts you in a bad position.  The at fault carrier won't pay the medical bills until they accept liability and sometimes not until the case is resolved.  This confusion can leave medical bills unpaid.  So, even if other driver had car insurance at the time of the crash, tell your medical providers to bill your health insurance company. 

    If you don't have health insurance, hopefully, you had MedPay coverage with your car insurance.  MedPay is an optional component of your car insurance that pays medical bills.  It will pay for medical care for you and your passengers, up to certain amount, regardless of fault.  If you don't have health insurance or MedPay, sometimes doctors will hold their bills until the claim is resolved - it's always worth asking.  The key is that you seek treatment and make sure the bills aren't sitting unpaid.

  • Should I see a doctor after a crash or fall even if I'm not sure I'm hurt?

    If you are injured in crash, or fall or some other way, it is very important that you seek medical treatment.  Seeking medical treatment is important for any claim that you might have because the claim won't be very valuable without a doctor's opinion regarding the injuries.  Seeking medical attention after an injury is also very important for your health. If you have a family doctor that you see regularly, go see him/her for your injuries.  Your family doctor will refer you to a specialist if you need it. 

    It is important that you be honest and complete but don't exaggerate your injuries.

    I often hear from clients that they don’t seek medical attention because it is too difficult to get off work or school.  In addition, sometimes there are financial considerations that make it impossible to go to the doctor.  I tell my clients - do your very best to get treatment.

    Regarding school/work restrictions, try to talk to the administration at the school or your boss ahead of time.  Perhaps you can develop a plan for you to take off to get treatment and make up the school work or the work time later. 

    If you have to miss work or school, we will ask for that lost time to be compensated as part of your claim. 

    This is true even if you didn’t lose money but instead had to use vacation or sick time at work. Regarding the financial considerations, it is important that if you have medical insurance, you use your insurance to seek treatment.  If you are not fortunate enough to hold medical insurance, you will want to contact your car insurance company to find out if you had MedPay coverage as part of your insurance. 

    MedPay will cover some of your bills up to a certain amount and can provide the means for you to seek treatment after an injury. 

    If you weren’t carrying MedPay at the time of the crash, ask your doctor for names of docs who treat on “lien” - this means the doctor will hold your bill until the end of your case. As always, if you have questions about this process, you should consult with your attorney.

  • Can I Be Fired for a Post on Social Media?

    Beginning January 1, 2017, employers will be further limited in what online information they can seek from their employees. This is part of an ongoing effort by the Illinois legislature to codify and define privacy rights both in and out of the workplace.

    The updated law prevents employers from seeking certain information regarding their employees’ social media and online presence.

    Employers need to be aware of the updated law, as violations can result in fines, attorneys’ fees, and actual damages. The overarching theme of the new law is that employers cannot force employees to hand over social media account information. This includes passwords, usernames, Twitter or Instagram handles, groups joined or information posted—namely, anything related to an employee’s social media account that is not in the public domain. Even if an employer inadvertently stumbles upon an employee’s social media account passwords or usernames, or any other information that would give them access to the employee’s social media account, the employer cannot use it. In addition, as may be obvious, an employer cannot retaliate against an employee for refusing to hand over social media account information.

    The only exception to the rule is also an obvious one—if the employer’s need for the social media account information is related to a valid investigation into an employee’s violation of law or workplace rule, then the investigation should be allowed to proceed despite the above prohibitions. 

    Of course, this law is still subject to the “you have no privacy rights at work” principle. If you do get on social media at work, your employer can gain access to whatever it is you have been doing. So, employers beware and employees be aware. Employers should stay away from the social media questions during interviews and not seek access to any online account unless pursuant to a valid investigation.

    Employees, you have a right to withhold your personal social media accounts from your employer, unless you are using them at work. 

  • Recently I was in a crash. The other driver ran a stop sign and the impact broke my arm. The other driver’s insurance company called me and said they want to send an adjuster out to my house to interview me. Is this normal? Do I have to meet with them?

    We are so sorry to hear about your crash, and we hope your arm is healing up quickly! Insurance adjusters are trained to call you immediately after a wreck.

    To be honest, they know that if they can get to you before you hire an attorney, it could save their company money.

    They literally put this in their training manuals.

    Under your insurance policy, you have an obligation to cooperate with YOUR company, but that doesn’t mean you have to talk to them while you’re still injured or in the hospital. If you get a call from your adjuster, tell them you want an opportunity to consider hiring counsel and that you will cooperate with them after consulting with an attorney.

    If the other driver’s adjuster calls, you have NO obligation to provide them with information, and you should not talk to them until you consult with an attorney.

    If you would like to set up a free consultation with us, we would be happy to look at your crash report and medical records in order to determine if you need an attorney. If you do, you will not pay anything unless we secure a settlement or verdict for you.

    For more information on what to do after a crash, please order your copy of our free book ‘When the Rules of the Road Get Broken,’ or download your copy HERE.

  • Does a contract have to be written to be valid in Illinois?

    Many clients assume that a contract must be in writing to be valid in Illinois. This is not always the case.

    In fact, much of the time, an oral agreement can be considered a legally binding contract. There are three main special circumstances to this rule.These circumstances are part of the Statute of Frauds that says that, because of the possibility of abuse in certain situations, a contract must be in writing in order to be valid.

    The three special circumstaces are: 

    1. The sale of "real property." Real property is property that cannot be moved- for example, your house or land.

    2. The sale of something for $500 or more. You should always have a written contract for something that costs $500 or more.

    3. A contract that takes more than a year to complete. For example, a 2-year employment contract would certainly need to be in writing.

    For more information on legal contracts in Illinois, check out this video from Attorney Andrew Koester. 

  • Is it illegal to leave my child alone in the car for a short period of time?

    A mother in Florida was arrested last week after a police officer spotted her sleeping child alone in her vehicle. The woman had left the car running and the doors unlocked while she ran a brief errand. Her reasoning did not keep her out of jail. So, what does the law in Illinois say about child safety in automobiles?

    A person who leaves a child 6 years of age or younger unattended in a motor vehicle for more than 10 minutes is in violation of the law. 

    Like most laws, the details are very important. Unattended means either: 

    • Not accompanied by a person 14 years of age or older; or

    • If accompanied by a person 14 years of age or older, out of sight of that person.

    A violation of this Section is a Class A misdemeanor which means up to one year in jail and up to a $2500 fine. In some cases, it may also lead to involvement of DCFS. A second violation is a Class 3 felony, meaning 2 to 5 years in prison and up to a $25,000 fine. A violation that causes the death of the child is a Class 3 felony for which a person, if sentenced to prison, shall be sentenced to a term of 2 years and up to 10 years.

    Even under the safest conditions, it is never a good idea to leave children unattended in a car. The minor inconvenience of having a grumpy toddler or a tired baby is surely better than being forced to answer to a judge and DCFS about your parenting choices.