Blogs & Success Stories

  • ESTATE PLANNING - Trusts & Wills, Power of Attorney, Probate Issues

    Trusts & Wills
    After someone passes away, their estate has to be probated.  Or, if that person has a trust in place, the trust can operate as an instruction manual for the people who are left behind to then operate and carry out the wishes of the person who passed away.  

    If you have a will in place, then the will goes through the process, called probate, a judge goes through and makes sure that the will is valid and allows the will to work as the instruction manual to determine where all the assets and the different things are distributed to the different heirs.

    They are two different mechanisms to do essentially similar things by taking all of an estate and dividing it up amongst the heirs or beneficiaries, whoever is designated in either that trust or that will.

    What Is a Power of Attorney?
    A power of attorney is typically used in estate planning production. Unlike most other estate planning documents that deal with things that are happening after someone dies, a power of attorney is an instrument that is used while someone is alive but not able to handle their own responsibilities.

    It could be a situation where someone is traveling outside of the United States or an area where they’re able to communicate effectively and they need to have someone to sign documents for them.  A power of attorney could provide the ability for that person to do that type of task.

    It could also be a situation where someone is incapacitated, without the mental ability to sign a document. A power of attorney could allow a person to sign or execute documents on their behalf.  A power of attorney can be very broad in its scope, or it can also be very narrow depending on the need.

    Be Cautious When It Comes to Probate
    We’ve had a few different cases that have involved probate issues where individuals have either tried to draft something themselves, or they’ve taken a form that they’ve found on the internet and have tried to fill it out.   When they have not done everything that they should have done, the children, or heirs, have ended up litigating over those things.

    Unfortunately, those types of cases can drag on and become incredibly expensive.  The people were initially just trying to save a few hundred dollars or up to a couple thousand dollars if they were doing some sort of irrevocable trust.  By doing it themselves they end up costing their heirs tens of thousands of dollars in litigation costs.

    Probate is one of those areas where an ounce of prevention is absolutely worth a pound of cure.  If you can do things proactively on the front end and do them right, you’ll prevent a lot of expense and heartache on the back end.
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  • PERSONAL INJURY - Negligence, Injured at Work, Wrongful Death

    Personal Injury – How to Establish Negligence
    In almost every law school in the country, every first year law student has to take a course called “Torts”.  Within that class, often half of the class is devoted to the subject of negligence. Negligence comprises claims such as wrongful death, slip and falls and car accidents.  Those types of claims happen from someone else’s negligence, not from an intentional act. Negligence is composed of four pieces: a duty, a breach of that duty, causation and damages.  You have to have all four pieces for there to be a valid negligence claim.
    I Was Injured on the Job.  Do I Have a Personal Injury Case?
    A question we get from time to time from clients is, if they were injured in an accident at work, if they have a personal injury claim.  There are two different aspects to these types of cases. On one side, there is the one action rule. Which means that if you’re injured on the job you’re not able to do that except through workers’ compensation.  Workers’ compensation guarantees, no matter who was at fault, you are going to get paid under a specific structure. You are not able to pursue the employer. The other side is that there can be a personal injury action even if you’re injured at work.  If the injury is caused by someone other than one of your employers or employees of that company, then you may have a third party claim which can be run like any other personal injury case.
    Wrongful Death – Can I Bring a Lawsuit Against the Negligent Party?
    If you have a loved one who has passed away as a result of someone else’s negligence, this is called a wrongful death claim.  We handle a lot of these. The claim is brought on behalf of the estate of that person who passed away and it’s also brought on behalf of the individuals who are left behind – parents, siblings, children or others.  These people also may have claims that derive from wrongful death statute in Utah and allow them to receive compensation for the lack of enjoyment they would have had if their loved one had not passed away. Not to mention all of the compensation the decedent would have been entitled to if not for the injuries: their life expectancy, future damages and all of those things that comprise a wrongful death claim.
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  • FAMILY LAW - Taxes, Divorce Decrees & Retirement Accounts

    Taxes on Alimony and Child Support
    In one of our case mediations, a question came up whether the spouse who is receiving child support and alimony will have to pay taxes on that money. As of 2019, alimony is no longer taxable to the person receiving it in the state of Utah. The person paying alimony pays as a post-tax payment on that and also pays the tax on child support. It’s important for those receiving and paying to understand the tax implications.
    Spouse Refuses to Sign a Final Divorce Decree
    Here are a couple of things to consider: First, if the parties settle the case through a stipulation and one spouse will not sign the divorce decree, the other spouse can file a motion to enforce the settlement agreement. The court can then enforce that settlement agreement and finalize the divorce. Second, if there isn’t a stipulation or settlement, you can still push the case through to a trial. If one spouse refuses to respond, unfortunately, it does become more difficult and time consuming to resolve until a divorce decree is in place.
    Splitting Retirement Accounts in Divorce
    An issue that comes up from time to time is whether a spouse will receive a fair share of their spouse’s retirement account in a divorce. This is one of the subtlest pieces of law in Utah. Basically, you split the amount that has accrued during the course of the marriage. This is done through a qualified domestic relations order, or QUADRO, as it’s often referred to, which takes the one account and splits it into two different accounts. This way, there are no immediate tax implications, and both spouses will keep them as their own retirement accounts continuing forward.
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  • BUSINESS LAW - Beware of These 3 Issues

    Here are three common legal issues faced by businesses. The key is to protect your business before things become a problem.

    1. It’s important to make sure that your human resources department and legal professionals are ready to handle issues should they arise when it comes to workplace discrimination and harassment. Hold on to résumés to show that you hire the most qualified candidates regardless of age, gender, or ethnicity.  Have your HR department hold regular trainings so your management team and employees are familiar with discrimination and harassment policies and ethics.  Firing those who violate these policies can be crucial.

    2. If a group of dissatisfied customers decided to band together and file a class action lawsuit against your company, the damage could be irreparable. Stay on top of customer issues by taking care of problems as they arise, continually asking for feedback and even positive reviews, when applicable, to maintain your personal and online reputation.

    3. Should contract or other business disputes arise with employees or other business associates, it’s a good idea to have a legal team to back you up. Good communication and ethics in daily business will also help avoid many, if not all, of these situations.
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  • BUSINESS LAW - How to Handle a Contract Dispute

    When it comes to contract law, a good business attorney has the experience to help clients with contract disputes. If one or multiple parties involved in a contract fail to uphold their side of things, then a breach of contract may have taken place. Also, if there is intentional fraud or misrepresentation, the person asserting this must prove that the other party should have known about it and that the false information was relied upon when entering into the contract.
    However, if a contract is found to be void, then the parties involved may not be held liable for breaches of that contract.
    When possible, a contract should be done in writing. Oral contracts may be enforceable—but not always. Assuming parties to the contract are not coerced and have the mental capacity to enter a contract, there are three main elements of an enforceable contract:
    1. Offer - An offer is presented that is of value to all parties.
    2. Acceptance - All parties agree to the offer.
    3. Consideration - Monetary or other compensation is stipulated.

      photo from freepik

    In order to resolve a contract dispute, there are several options:
    1. Re-read the contract to make sure there are no misunderstandings.
    2. Review the contract with the other party.
    3. Mediation
    4. Arbitration
    5. Litigation

    At Anderson | Hinkins, we have the experience and knowledge to help our clients with these types of issues. In fact, we also have the ability to write legally sound contracts that can help avoid these situations in the first place. If things have gotten to the point where disputes cannot be resolved between the parties to a contract, please reach out to us. We’ll help you get a favorable outcome to your legal obstacle.
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  • BUSINESS LAW - Which Organizational Structure Is Best for My Business?

    When forming a business, the first couple of steps to consider are: choosing a name for your business and registering your business. A good business law attorney can assist in verifying the availability of your chosen name and can ensure that it’s registered and reserved with the appropriate state agency. In addition to the legal name you choose, you may want to choose a “Doing Business As” (DBA) name. For example, consider this scenario: John Smith sets up a painting business. Rather than operate under his own name, John instead chooses to name his business: “John Smith Painting.” This name is considered a DBA.

    A corporation, nonprofit organization, limited liability company, and partnership are required to register with the appropriate state agency, and an attorney will know which organizational structure will work best for your business. Here are the main factors to consider:

    1. Tax Preferences
    2. Capitalization of the Business
    3. Whether You Plan to Issue and Trade Stock
    4. Management Structure
    5. Liability

    Choosing the correct structure provides you with a level of protection from personal liability for your business’s activities. Attorneys understand which operating documents, such as bylaws or an operating agreement, can help solidify the protection and functionality of your business.

    Finally, many businesses are required to obtain proper licenses before doing business. We typically do not assist in obtaining this license, but we can help identify the appropriate entity from which to obtain one.
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  • ESTATE PLANNING - Who Will Raise My Children If I Die?

    Often, parents don’t fully plan for what would happen if they unexpectedly passed away and left
    their children behind. If you die without a will or estate plan in place, the courts will decide who will raise your children. Likely, they will choose a family member. But if you have no close family, or if you don’t want a certain family member to be the one to raise your children, you will not have a say without a named guardian. If you prefer a family friend to be their guardian, someone who has a close relationship with your children, the courts will have no way of knowing this without an estate plan in place.

    Things to consider when it comes to selecting guardians include:

    1. How close they live to where your children currently reside (proximity).
    2. How closely their lifestyle aligns with your children’s interests.
    3. A similar religious background can help to maintain consistency for children.
    4. Taking on children is also a major financial responsibility and is important to consider.

    Additionally, an estate plan provides options to manage your children’s inheritance effectively. If not stipulated in an estate plan, available funds would be automatically distributed to your children once they turn 18 years old, whether or not they are capable of managing the inheritance properly. A minor’s trust could be established. The trustee would manage the inheritance and disbursements, not necessarily ending when the children reach the age of majority.

    It’s much easier to avoid probate and costly legal fees for your heirs by getting an estate plan in place now, and we have experience to help in either situation. There are many obstacles in life; let Anderson | Hinkins provide you with the legal solutions to overcome them.
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  • ESTATE PLANNING - Start the Year Off Right by Getting Your Estate Plan in Place

    At Anderson | Hinkins, we give each of our clients individualized focus and provide them with intelligent legal solutions. Getting an estate plan in place is not just planning for the worst-case scenario; it’s planning for the best-case scenario for you and your loved ones. An effective estate plan takes care of your family when you are no longer able to. Here are four benefits estate plans offer:

    1. Preventing wealth from going to unintended beneficiaries.
    2. Protecting families with young children.
    3. Preventing your heirs from inheriting a tax burden.
    4. Eliminating family messes when you’re gone.

    A well-thought-out estate plan should include:

    • Will/trust
    • Durable power of attorney
    • Beneficiary designations
    • Letter of intent
    • Healthcare directives
    • Guardianship designations

    Is it necessary for an attorney to set up your estate plan? Not necessarily. You could definitely use a DIY service, and there are many options out there. The question is: should you? The main thing to consider is: Will your estate plan hold up in court? Consider using an attorney who understands these laws and the best ways to protect you and your family. There are many obstacles in life; let Anderson | Hinkins provide you with the legal solutions to overcome them.
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  • PERSONAL INJURY - 5 Ways to Drive Safely in the Snow & Ice

    1. Get your tires and brakes checked. Whether you drive a brand-new SUV or an old clunker, having tires with good tread and brakes that work properly is a huge help in avoiding accidents.
    2. Limit distractions. It’s good to limit distractions with driving in general, but especially when the weather is bad. Make sure that your windshield is free of ice before heading out on the roads. It may seem simple, but not everyone takes the time to do this.
    3. Reduce speed. If you do start to slide out in snowy weather, it’s much easier to regain control if you are traveling at safe speeds, sometimes even under the posted speed limit.
    4. Increase following distance. If the normal, safe following distance is three to four seconds, eight to 10 seconds is more ideal for snowy weather.
    5. Stay home. If you are self-employed or your boss will let you do it, work from home! The best way to avoid a collision is not to drive at all.
    We hope that you’ll be safe throughout the rest of this snowy season. Even when you do take steps to be a safe driver in bad weather, you can’t control how others drive. If you, or those you care about, are injured in an accident that isn’t your fault, give us a call. You deserve to be compensated for costly medical bills and pain and suffering, not to mention your vehicle damage and the associated headache of the insurance claims process. Consultations are free. At Anderson | Hinkins, we know how to help you overcome your legal obstacles.
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  • BAD FAITH - What to Do When Your Claim Is Denied

    (The result of this case was an award for hundreds of thousands of dollars for our client.)

    At Anderson | Hinkins, we practice law with integrity & intelligence to help people overcome life’s legal obstacles.

    When an insurance company fails to pay you after a covered loss, it creates a legal obstacle known as bad faith.  We helped a family in Central Utah--we’ll call them the Jones Family--with such a case. They came back from vacation and found their house flooded with what ended up being more than $100,000 in damage. Because they lived in a rural area, the insurance company didn’t respond quickly and didn’t come to inspect the home.

    The Joneses ended up doing all of the cleanup and remediation of damages on their own.  Since they are not experts in the field, some of the remediation was not done properly. Not only that, but the insurance company fought with them on the value of their lost or damaged property during the whole process.

    Insurance provides a valuable service in society and is meant to cover risks inherent in day-to-day living.  Policyholders pay premiums into a large pool of money, which is then used to pay claims. However, when it comes down to it, insurance companies are businesses with a primary focus of profitability.  Denying claims is one way for them to stay profitable. Unfair settlement practices, such as failing to fulfill contractual promises, denying claims based on vague policy language, or failing to properly defend you can be grounds for a bad faith claim against an insurance company.

    The Joneses decided to file a lawsuit on their own against the insurance company.  With many assets and attorneys at their disposal, the insurance took them through the ringer.  As things got more difficult and desperate, they reached out to Anderson | Hinkins. We helped them win their case against the insurance company, and the insurance company paid for the property and structural damages, as well as damages for bad faith, in a settlement for hundreds of thousands of dollars.

    If you are in the middle of a dispute with an insurance company or your claim has already been denied, consider getting an attorney who understands insurance law and knows how to get you the settlement you deserve.  There are many obstacles in life; let Anderson | Hinkins provide you with the legal solutions to overcome them.
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