The material included in this web site is general and not intended as legal advice. Readers should not act upon information contained in this material without professional personal legal counseling. All information on this web site is provided without any warranty, express or implied, as to their legal effect and completeness. Heiting & Irwin does not warrant any information provided via this web site, nor is an Attorney-Client or Attorney-Attorney relationship created in any way by providing information to you on this site. If you have a legal problem, we suggest that you consult an attorney in person as soon as possible.
Do I need auto insurance?
What kind of automobile insurance coverage should I carry?
If I am in an auto accident, what should I do if someone is injured?
If I am in an auto accident, what information should I gather at the scene?
If I think the auto accident is my fault, should I say so?
Should I get a physical check up after an auto accident?
Who pays if I am injured or my car is damaged?
What should I do if the other driver does not have insurance?
What if I want to make a claim for my injuries?
Can I avoid the costs and fees associated with probate of my estate by having a Revocable Living Trust?
If I want to make sure that my house automatically goes to my children without the expenses of probate, should I add their names to the title of the property as joint tenants while I am alive?
Are there potential tax advantages for a married couple to having a Revocable Living Trust?
Is a “permanent” guardianship permanent?
When can a guardianship be terminated?
Who can be a guardian?
Can grandparents get a guardianship over their grandchildren?
What if I leave my kids with my in-laws, with whom I don’t get along?
Can my ex-in-laws get an order of visitation of my children?
- Question: Do I need auto insurance?
Answer: Yes, recent changes in the law (Proposition 213, an act of 1996) allow police officer to ask you to prove that you have auto insurance. If you are in an accident, you must show the name of your insurance company and your policy number to the other drivers involved in the accident. If you are not insured, you will be fined and lose your license for at least one year. If you tell the officer you have insurance when you do not, you can be fined, sent to jail, or both.
The law says that you can prove your financial responsibility in one of these ways:
- Insurance – you may have liability insurance that provides at least $5,000.00 coverage for property damage for one accident, $15,000.00 for one person injured or killed in an accident and $30,000.00 for two or more people killed or injured.
- Cash – you can deposit $35,000.00 with the DMV.
- Bond – the DMV will also accept a bond for $35,000.00. However, few bonding companies issue financial responsibility bonds.
- Question: What kind of automobile insurance coverage should I carry?
Answer: California Law requires that motorists be able to provide evidence of financial responsibility showing coverage of at least $15,000/$30,000 for bodily injury liability, and $5,000 for property damage liability. Involvement in even a minor accident, however, can result in potential liabilities that could prove such limits woefully inadequate, leaving personal assets exposed to judgment and execution.
It is advisable to also carry medical payments coverage (which pays medical expenses incurred by you, members of your household under certain conditions, and occupants of your vehicle who are injured in an automobile collision without regard to fault) and uninsured/underinsured motorist coverage (which will offer you protection if you are injured as a result of the negligence of an uninsured or underinsured driver).
Although it is cheaper to purchase minimum limits of coverage, the consumer is wise to look into the higher insurance limits, i.e., $100,000/$300,000 for both bodily injury liability and uninsured and underinsured motorist coverage. It may be surprising how little it costs to get increased protection, and if you should ever find yourself seriously injured in an accident which was the fault of an uninsured or underinsured driver, you will be glad to have spent a few extra premium dollars.
- Question: If I am in an auto accident, what should I do if someone is injured?
Answer: The law requires you to give reasonable assistance to injured persons.
For example, you may need to call an ambulance, take the injured person to a doctor or hospital, or give first aid, if you know how.
If you are not trained in first aid, do not move someone who is badly hurt; you might make the injury worse. However, you should move someone who is in danger of being hurt worse or killed – even if you do make the injury worse.
To avoid additional collisions, try to warn other motorists that an accident has occurred. Placing flares on the road, turning on your car’s hazard lights and lifting the engine hood are good ways to warn oncoming traffic.
Arrange to get help for any injured persons, and try not to panic.
- Question: If I am in an auto accident, what information should I gather at the scene?
Answer: Since many records now are confidential under the law, you may not be able to obtain the information that you want from the Department of Motor Vehicles. So be sure to get as much correct and complete information as you can at the scene of the accident. You and the other driver should show each other your drivers licenses and vehicle registrations.
Record the following information:
The other drivers’ name, address, date of birth, telephone number, drivers’ license number and expiration date and insurance company;
The other car’s make, year, model, license plate number and expiration date and any other vehicle identification number;
The names, addresses, telephone numbers and insurance companies of the other car’s legal and registered owners – if the driver does not own the car;
The names, addresses and telephone numbers of any passengers in the car;
The names, addresses and telephone numbers of witnesses to the accident. Ask them to stay and talk to the CHP or police. If they insist on leaving, ask them to tell you what they saw and write everything down;
Try to identify people at the accident scene, even if they will not give their names. For example, if a man who saw the accident drives off, take down his license plate number. Law enforcement officials can trace the owners name and address.
The name and badge number of the law officer who comes to the accident scene. Ask the officer where and when you can get a copy of the Accident Report;
Draw a diagram of the accident. Draw the positions of both cars before, during and after the accident. If there are skid marks on the road, pace them off. Draw them on the diagram, noting the distance they cover. Mark the positions of any crosswalks, stop signs, traffic lights or street lights. If you have a camera with you, take pictures of the scene;
Make notes on weather and road conditions. If the accident happened after dark, indicate if streetlights were on. Estimate your speed and the other driver’s speed. Be sure to note the exact time and place the accident happened.
- Question: If I think the accident is my fault, should I say so?
Answer: Do not volunteer any information about whose fault the accident was. You may think you were in the wrong and learn the other driver is as much, or more to blame than you are. You should talk to your insurance agent, your lawyer, or both before taking the blame. Anything you say to the police or other driver can be used against you later.
- Question: Should I get a physical check up after an accident?
Answer: A check up may be a good idea for both you and your passengers. You could be injured and not know it right away. At least call your doctor or another health care provider for help in deciding what your needs may be. Your automobile insurance may pay your health care bills.
- Question: Who pays if I am injured or my car is damaged?
Answer: That depends on who was at fault, whether you and the other driver have insurance, and what kind of insurance you have. There are two major types of insurance: “liability” and “collision”.
Liability: If you are to blame for an accident, your liability insurance will pay the other driver for property damage and personal injuries up to your policy limits.
If you are not at fault, the other drivers liability insurance pays for your car damage and/or personal injuries.
In California, if you and the other driver both have car damage or injuries and you both are partly responsible for the accident, you each may be able to collect part of your loss. How much each of you collects from the others policy depends on the amount of your damages and how much each of you is at fault.
If you loan your car to someone who has an accident, your insurance may pay for the damages – just as it would if you had been driving.
Collision: No matter who is at fault, your collision insurance pays for damages to your car (not your medical expenses), minus the policy deductible. Most insurance companies do not offer collision coverage for very old cars.
You may have other insurance too. Your health insurance, for example, may pay your medical bills. Also, your automobile insurance may have medical payments coverage. If so, it will pay the cost for your medical treatment. This coverage can be used in place of your other health insurance or in addition to it.
- Question: What should I do if the other driver does not have insurance?
Answer: If the other driver caused the accident and is not insured, your own policy will pay for your personal injuries – if you have “uninsured motorist” or “medical payments” coverage.
If the other driver’s insurance is not enough to pay for all of your damages, your own insurance may pay the difference, if you have “under insured motorist” coverage.
If you do not have these kinds of insurance or if your damages are more than the policy’s limit, you can sue the other driver. However, even if you win the case, you cannot be sure that the other driver has the money to pay.
If you have collision insurance, it will pay for the damage to your car, no matter who is at fault.
- Question: What if I want to make a claim for my injuries?
Answer: If the other driver was at fault, you may be entitled to compensation – for your personal injuries, pain and suffering, car damage and other expenses, such as lost wages or the cost of a nurse needed after the accident. You should make a claim with the other driver’s insurance company. But, if you are not satisfied with the amount they offer, you may want to sue.
If you plan to sue, do not delay. There are time limits to filing various types of claims – usually one year after the accident, but sometimes much less – so act quickly.
Beginning in 1991, you can sue for $5,000.00 or less in small claims court. A lawyer cannot represent you in this court, but you can talk with one before hand. If you want to sue for a larger amount, you will need your own lawyer. An insurance company lawyer cannot represent you if you are the person who is suing (the plaintiff).
Heiting and Irwin accept automobile accident cases on a “contingent” fee basis. That means you do not pay the lawyer if you lose the case. If you win, you pay the lawyer a percentage of the money you get. A smaller percentage is charged if the case is settled before the lawyer does all the work necessary to go to arbitration or trial.
If you and your lawyer agree to a contingent fee, the lawyer must put the agreement in writing and give you a signed copy. The contract will explain what percentage the lawyer will get if you win and how it might vary. It also states who will pay for any court costs.
- Question: What if I am injured as the result of a defective product?
Answer: The basic rule in California is that a manufacturer is strictly liable in tort when a manufacturer, knowing that it is to be used without inspection for defects, places an article on the market and the article proves to have a defect that causes injury to person or property.
Consumers and bystanders alike can seek compensation from the manufacturers and, under certain circumstances, the distributors of offending products. The rule establishing liability has been made applicable to any person who is in the business of placing the defective product in, or moving it along, the stream of commerce. “Strict liability” in tort applies to both defects in design as well as to defects in manufacture.
Additionally, inadequate warnings on potentially dangerous products, which cause injury or death, can result in liability on the part of the manufacturer and distributor.
Strict liability in tort is a complex doctrine; essentially precluding the need for a person injured by a defective product to resort to theories of fraud, negligence, or implied warranties to recover damages. The guidance of an attorney in this complicated area of the law is strongly suggested.
- Question: Can I avoid the costs and fees associated with probate of my estate by having a Revocable Living Trust?
Answer: The simple answer to this question is yes, but you must “fund your trust” with those assets which would otherwise constitute your estate in order to avoid having those assets subjected to probate fees and costs. This means actually transferring legal title to real and personal property into the trust, and holding title to such property in the name of the trust.
There are no other methods to have real and personal property pass to your heirs outside of probate, but those methods generally all require giving up your sole ownership of the asset unless the particular property can be transferred on death by way of a beneficiary designation, such as a life insurance policy or an individual retirement account.
- Question: If I want to make sure that my house automatically goes to my children without the expenses of probate, should I add their names to the title of the property as joint tenants while I am alive?
Answer: Generally speaking, the answer to this question is no. If you want to make sure that your children receive your house and other real property, and you also want to avoid probate, a Revocable Living Trust is an effective device for holding title to real property and transferring ownership of real property to the beneficiaries designated in the trust upon your death. There are two potentially significant disadvantages to adding other names to the title on your real property as joint tenants.
First, you give up your sole ownership of the property, and you must obtain the written consent of all named owners if you desire to sell or dispose of the property. Second, if your home or real property has appreciated significantly in value, it is much better for your children or other beneficiaries to take title to your home or real property by way of inheritance, which can be accomplished effectively through use of a Revocable Living Trust.
The reason that it is more desirable to have your heirs take real property which has increased substantially in value by inheritance is based upon the potential exposure of your heirs or beneficiaries to federal capital gains taxes based upon the increase in value (capital gain).
If you transfer an ownership interest in real property to your children or other heirs or beneficiaries during your lifetime, they will, for capital gains tax purposes, acquire your “basis” in the property, which generally is the price you paid plus the cost of improvements to the property.
On the other hand, if real property is inherited, the person or persons inheriting the property acquire a “stepped up basis” in the property, which is the value of your real property as of the date of your death. This can have substantial implications as to capital gains tax exposure should your children, heirs, or beneficiaries wish to sell your real property upon your death.
- Question: Are there potential tax advantages for a married couple to having a Revocable Living Trust?
Answer: The answer to this question depends upon the size of the respective estates of the husband and wife. In the year 2000, the Federal Estate Tax Exemption is $675,000 per person, and is gradually increasing year by year until 2006 when it will reach $1,000,000 per person.
Naturally, it is difficult to predict with any certainty the size of your estate at the time of your death, but it is wise to keep in mind that the federal government includes property in your estate for tax purposes even thought he particular property in question may pass outside of probate. For example, a substantial life insurance policy, or significant appreciation in the value of your home or real estate, can potentially place your estate value above the federal exemption amount.
As a married couple, it is therefore prudent to anticipate the possibility that the joint value of the estates of the husband and wife will exceed the federal exemption amount. A Revocable Living Trust can be tailored for a married couple such that an amount equivalent to the federal estate tax exemption can be sheltered after the death of the first spouse, but still allow access for the surviving spouse to the sheltered amount for the health, education, support or maintenance needs of the surviving spouse during his or her lifetime. This type of planning can prove extremely beneficial to the children or other beneficiaries of married couples given federal estate tax rates, which climb as high as 55%.
- Question: How much does it cost to get a divorce?
Answer: It depends on the complexity of the issues; we typically take a retainer from which we pay ourselves at a specified rate per hour. We prefer to settle cases but will litigate if the parties cannot come to any agreement.
- Question: Do you ask for attorney’s fees from the other party?
Answer: Yes; depending on each party’s relative ability to pay and the difficulty the party causes.
- Question: Do you do just custody issues?
Answer: Yes, if the divorce is final and you just need a modification of custody.
- Question: Can I use the District Attorney’s office to collect spousal support for me?
Answer: Only if they are also collecting child support for you. Otherwise, you have to hire private counsel.
- Question: Is a “permanent” guardianship permanent?
Answer: No. A permanent guardianship simply means that the child will live with the guardian(s) until such time as the parents are able to care for the minor and the guardianship is no longer necessary and/or convenient. A “permanent guardianship” is not the equivalent of an adoption.
- Question: When can a guardianship be terminated?
Answer: When it is no longer necessary and convenient and the parent(s) are capable of caring for the child. A guardianship can be terminated by the stipulation of the parties or via a court order.
- Question: Who can be a guardian?
Answer: Any person who petitions the court and is granted the guardianship. Relatives are given priority over non-relatives, if the relative is deemed an appropriate guardian.
- Question: Can grandparents get a guardianship over their grandchildren?
Answer: Yes, under some circumstances. All cases are decided on a case-by-case basis – that is, it depends on the particular facts of the case.
- Question: What if I leave my kids with my in-laws, with whom I don’t get along?
Answer: It is risky if you leave them for extended periods of time. A vacation would probably not be sufficient. Again, each case is decided on a case-by-case basis.
- Question: Can my ex-in-laws get an order of visitation of my children?
Answer: If you and your ex-spouse consent to it. There are rare circumstances under which they can get custody if you don’t consent.