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What Is a Government Shutdown and What Happens?

Legal Assistant February 1, 2021Administrative Law, Constitutional Law

2018 witnessed the longest-ever government shutdown when President Trump demanded more than $5 billion to fund the construction of a US-Mexico border wall. In the standoff, Democrats refused to play ball, stating that they wouldn’t allocate any additional funds for it.

Recently, Trump threatened yet another government shutdown after expressing his displeasure with the pandemic relief bill and the $2.3 trillion government funding package approved by Congress. Not only was he unhappy with certain aspects of the funding legislation, but he also wanted the $600 relief checks to be raised to $2,000.

What is a government shutdown, and what happens when it is in effect?

Here’s everything you need to know.

What Does a Government Shutdown Mean?

A government shutdown is exactly what it sounds like – the closure of non-essential federal programs. It is a crisis – manufactured or otherwise – that occurs when Congress fails to fund the government.

What happens during a government shutdown? The government halts all non-essential services, while essentials like the fire departments, police, air traffic controllers, border protection, and the armed forces continue to operate.

Shutdowns occur in one of two ways: Congress could fail to allocate the funds required for federal programs, or the president could refuse to sign the bills allocating those funds.

The result? A standoff between the executive and the legislative arms of government.

Why Do Government Shutdowns Happen?

In the normal budget process, Congress passes funding legislation for appropriations. The president then signs them by September 30 for the following fiscal year, which begins on October 1.

However, if this fails to happen by the time the deadline rolls around, both the president and Congress can pass a resolution to maintain funding appropriations at the existing levels. If that doesn’t happen in time, a federal shutdown occurs, which signals a complete breakdown in the budget process.

Most federal departments are funded by the discretionary budget. When Congress fails to appropriate funds, these departments have no choice but to close, unless they have surplus funding available to support their operations.

Who Is Affected by Government Shutdown?

During a federal shutdown, many employees get furloughed, which means they’re sent home without pay. Those providing essential services have to continue working without remuneration. Once funding is approved, all employees receive back pay for the duration of the shutdown.

Most of the agencies that provide essential services are usually set up to allow them to operate without funding legislation. Several functions within the Department of Justice, for instance, have their own funding sources. Even the Postal service has a separate source of funds to allow for the continued delivery of mail until it exhausts that source.

Medicare, Medicaid, and Social Security payments form part of the mandatory budget. Because mandatory programs are automatically funded, they are rarely affected by a federal shutdown. Annual appropriation acts do not set mandatory or direct spending. Instead, it is governed by statutory criteria created by prior acts of Congress.

Here’s an overview of the percentage of furloughed workers in the 2018-2019 government shutdown.

Sector	Percentage of Furloughed Workers
Education	N/A
Energy	N/A
NASA	N/A
State	N/A
Homeland Security	13.1
Justice	15.9
Health and Human Services	24
Food and Drug Administration	29.4
Commerce	31.5
Treasury	42
Agriculture	43.5
Labor	77.7
Interior	82.9
Housing and Urban Development	86.7
Environmental Protection Agency	92.9
Internal Revenue Service	>95
Smithsonian	>95

Does a federal shutdown lead to a state shutdown? Not exactly. In the past, most states have been able to keep a large chunk of their programs and services running. The federal government then reimburses them once the funding is appropriated.

Sometimes this doesn’t happen fast enough. In other instances, they aren’t always fully reimbursed.

Nonetheless, given the fact that roughly two-thirds of federal grant funding to states comes from the mandatory budget, most of them aren’t generally affected by federal shutdowns.

How Does a Government Shutdown Impact the Economy?

Shutdowns impede economic growth for several reasons. For starters, federal government spending contributes about seven percent of the gross domestic product (GDP). When the government shuts down, this number falls significantly.

There’s also the fact that furloughed workers and unpaid contractors go several weeks without pay, which means they don’t have as much money to spend on purchases. This multiplier effect gets worse the longer the shutdown persists.

In the 2018-2019 shutdown, for instance, the country’s GDP went down by a whopping $11 billion; $3 billion in the last quarter of 2018 and $8 billion in the first quarter of 2019.

Examples of Recent Government Shutdowns

Before 1980, there were hardly any shutdowns. That is not to say there weren’t any funding gaps. Agencies simply assumed that Congress expected them to continue working, and so they did.

However, US Attorney General Benjamin Civiletti changed all that when he gave two opinions that required federal agency heads to suspend their operations until Congress appropriated the funds required. Only essential functions could continue with their operations.

The 2018-2019 shutdown was by far the longest one in history, lasting 35 days between December 21, 2018, through January 25, 2019. That wasn’t the only shutdown in 2018, though.

There was one on January 19, 2018, when the government closed its operations for three days after the US Senate failed to pass a resolution to extend funding appropriations until February 16, 2018.

On February 9, 2018, the federal government shut down once again for a few hours until both Congress and the president could pass another resolution to extend funding.

In 2013, in a Republican attempt to stop the launch of Obamacare, the government shut down from October 1 to October 17, 2013. The shutdown slowed economic growth in the period by about 0.4%.

Money Makes the Government Go Round

A government shutdown has a huge negative impact on federal employees and contractors alike. Anytime Congress and the executive arm of government aren’t in-sync when it comes to funding appropriations, a government shutdown is inevitable.

Have a question? Live Chat with one of our legal experts today.

What Happens if a President Refuses to Leave Office

Legal Assistant February 1, 2021Administrative Law, Constitutional Law

In the time since Joe Biden was declared the winner of the 2020 presidential election, the words and actions of President Donald Trump have raised fears that he might refuse to relinquish power.

While no individual in US history has ever attempted to cling on to the presidency after losing an election, the possibility of Trump being the first has raised deep concerns.

What happens if the President refuses to leave office? Is he forcefully removed? Does he stay in office? This article explores everything you need to know about it.

How Long Is a Presidential Term

The US Constitution explicitly spells out how the transfer of power works. Article II of the 20th Amendment stipulates that presidential terms run for four years, ending on January 20th at noon after an election year.

When does the president elect take office? Once the Chief Justice of the Supreme Court administers the Oath of Office to the President-elect, he officially assumes the duties of the position.

The Constitution further states that a president may be reelected to serve a second four-year term, but that’s it. No president can hold office more than twice.

This provision of the constitution has been upheld for more than 230 years, with presidents passing the presidential baton without acrimony. None has ever defied the results of an election.

The Constitutional Convention of 1787

The Constitutional Convention and Ratification was held in Philadelphia between May and September 1787. The purpose of the meeting was to address the issues that existed under the Articles of Confederation, specifically to do with the weak central government.

At the time, the federal government faced numerous challenges when it came to conducting foreign policy, mainly because it had no powers to enact or enforce laws, particularly those that individual states deemed to oppose their interests.

For instance, the 1783 Treaty of Paris, which was responsible for ending the American War of Independence, stipulated that all existing debts America owed to Britain were to be honored. It further stated that British loyalists whose property was confiscated could file suits in US courts to recover it.

As expected, these provisions were widely rejected, and many states refused to play ball. As a result, the British refused to vacate the military forts they had occupied in US territories.

Additionally, after the war, British goods flooded the American market to the detriment of American manufacturers and importers. The Confederation Congress did not have the authority to regulate this trade. Moreover, with individual states imposing their own import duty on goods brought in from anywhere else in the United States, the federal government had no power to stop this. As a result, the intrastate trade suffered.

There was also the issue of the Spanish Government, which at the time controlled New Orleans, barring American ships from sailing down the Mississippi River. Coastal merchants, particularly those in the northeast, were happy to make concessions in exchange for a treaty whose commercial terms were favorable.

The Confederation Congress’s southern delegates, on the other hand, wanted the ban lifted. The result? A deadlock between the North and the South.

The Way Forward

To resolve these issues, the Constitutional Convention presided over by George Washington, came up with a government model that relied on a series of checks and balances. This involved dividing federal power between the Legislative, Executive, and Judicial arms of government.

The idea was for all three branches to have an equal distribution of power so that no one arm of government would have more authority over the others. This exercise gave birth to the United States Constitution as we know it, which was adopted on September 17, 1787.

In recognition of the fact that at some point, changes or “amendments” would have to be made to address issues that may have been left out during the convention, the delegates came up with a list of requirements and methods to amend and ratify the Constitution.

25th Amendment Simplified

The 25th Amendment to the US Constitution stipulates what would happen to the presidency and/or vice presidency if they were to die, resign, or become incapacitated or disabled. Invoking it has always been a point of controversy, particularly Article IV, which allows for a president who is deemed incapacitated by injury or illness – including mental illness – to be removed from office.

This Amendment sought to address the question of – What happens if the president is too ill to serve his term in office, dies, or resigns.

The original Constitution allowed for the vice president to take over as acting president if such a scenario arose. However, its provisions were vague, and it didn’t address every possible contingency. Here’s how.

It didn’t specify who had the authority to declare the president unfit to hold office
It didn’t address whether the president could return to office after they recover from temporary incapacitation
It didn’t specify whether the acting president was only limited to performing presidential duties until a replacement was found or if they should take over the Office of the President entirely
It didn’t specify who would take over the vice presidency if the vice president were to die, become incapacitated, or become president

Presidential Succession Act

Congress passed the Presidential Succession Act in February 1792 to address those contingencies. It placed the Majority Leader and the President Pro Tempore of the House of Representatives and the Senate, respectively, in the line of succession.

This was the first of many changes that were made to address the presidential and vice-presidential succession question. Each administration was crafting its plan on how to handle the vacancies.

Fast-forward to January 1, 1965, when the 25th Amendment was enacted, two years after President John F. Kennedy’s assassination. It stated that:

If the president resigns or dies, the vice president becomes president
If the vice-presidency falls vacant for whatever reason, the president will nominate their replacement, who then has to be confirmed by a majority vote in Congress
If the president becomes temporarily incapacitated, he has to write to both the Speaker and President Pro Tempore of Congress stating that he cannot perform his presidential duties and powers. The vice president would then serve as acting president until he notifies them otherwise. The president still reserves his right to return to Office
If the Congressional Majority Leader and the Vice President write to the Speaker and President Pro Tempore of Congress stating that the president is unable to exercise his powers and duties, the vice president is immediately declared acting president

What Next

The Constitution, unfortunately, doesn’t address what would happen if a president attempted to stay in office beyond their term. The delegates at the Constitutional Convention of 1787 probably never imagined a scenario like that ever happening.

Lawmakers can generally use two avenues to remove a sitting president from office – the 25th Amendment or impeachment. Nonetheless, neither of these would apply since the president would technically cease to be president at noon on January 20, after an election year.

Have a question? Live Chat with one of our legal experts today.

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What Happens if You Ignore a Subpoena?

Legal Assistant November 10, 2020Business Law, Criminal Law, Personal Injury Law, Resources

You managed to convince your boss to give you much-needed time off from work this week. It’s only two days, but that’s more than you’ve had these past months. You plan to go to Wine Country and spend that time wining and dining at a luxury resort you’ve been dying to visit all year.

As you’re packing for your short trip, you hear a knock at the door. You head towards it, curious about who it could be since you were not expecting anyone over. You open it to find a young man waiting with a brown envelope in hand. He asks you to confirm your name – which you do. He then proceeds to hand you the mysterious envelope before exclaiming, “You’ve been served!” as he turns to walk away.

Feeling slightly confused, you close the door behind you, tear open the envelope, and examine its contents. As luck would have it, it’s a subpoena to appear in court on the precise day you’re supposed to be in Napa Valley.

A whirlwind of thoughts floods your mind. Can you ignore it and still go on your trip? What happens if you ignore a subpoena? Here’s everything you need to know.

Can You Ignore a Subpoena?

First off – what is a subpoena? A subpoena, or court summons as it is sometimes called, is a legal document issued by a judge that orders the recipient to comply with a very specific request from the court.

It could be a demand to present certain items or documents. It could be a request for your direct participation in an ongoing case as a witness. In other instances, it could be issued to compel you to allow the police to inspect your premises. Either way, when a court summons you, you have no choice but to oblige.

A subpoena is much more than a small inconvenience. So, if you were wondering what happens if you miss a court date? Well, you probably don’t want to find out. You risk facing punishment for ignoring the summons.

You might be in contempt of court, which is punishable by jail time, a fine, or both. At the very least, you need to accept the subpoena and formally challenge its terms by informing the court about your reservations.

Serving a Subpoena

There are several ways in which a subpoena can be served. It is usually done by an officer of the court or by a certified process server. This can be done through certified mail, email, or by hand.

There have been instances where subpoenas have been served to defendants by the court through alternative electronic means such as WhatsApp, although this isn’t as common. Once you receive it, though, you’re legally bound by its terms.

There are generally three different types of subpoenas you could get served with.

A witness subpoena – This is a court order that requires an individual to appear in court in person on a specific date. This is usually because they are required to give witness testimony in an ongoing trial.

A subpoena Duces Tecum – Duces Tecum is a Latin phrase that directly translates to “you shall bring with you.” This kind of subpoena compels the recipient to produce documents, records, or any other publications in their possession, at a specific date or place, in a deposition or court hearing.

Complying with this subpoena may involve mailing or emailing the documents without necessitating an in-person appearance.

A deposition subpoena – This is a court order that compels an individual or entity that is not a party to a lawsuit to produce documents, records, or any other publications requested by one of the parties in the lawsuit and/or appear at a deposition on a specific day to answer questions.

luxury resort swimming pool during day time

The main difference between a Subpoena Duces Tecum and a deposition subpoena is that the evidence produced in the latter form part of the trial discovery process. This evidence may not be used during the actual court proceedings.

Spoliation of Evidence

Whether or not they are party to the court proceedings, every individual or entity must preserve evidence that may be relevant to a dispute. This is a well-documented common law principle.

Spoliation of evidence is a term that’s often used in civil litigation where one party to a suit uncovers or suspects that the other side has accidentally, negligently, or deliberately destroyed evidence that would be deemed relevant to the case.

Spoliated evidence can include documents, physical objects, photographs, or electronically stored information contained in servers, phones, or even internal and external drives. Here’s a subpoena example to illustrate what spoliation of evidence looks like.

You’re suing a pharmaceutical company for selling you medication that caused adverse side effects, which were not explicitly stated on the packaging. The drug company vehemently denies these allegations stating that they have not received any complaints from other patients using the same medication.

You later receive a subpoena to produce the specific drug you were on. Unfortunately, however, the bottle containing the medication gets lost in transit. The other party would term this as a case of spoliation of evidence.

Can You Subpoena Text Messages?

Text messages often form a critical part of child custody and divorce litigation. However, it is usually quite difficult to obtain text messages through court proceedings, even with a subpoena to the cell carrier.

Carriers often use the Stored Communications Act – a federal law that requires the carrier to get consent from the cell phone subscriber before they can provide the court with the text messages.

What Happens if a Subpoena Is Not Served?

When you receive a subpoena, you either have to comply with its terms or challenge it through a legal process. If you fail to respond, you’ll be in contempt of court, which is punishable by jail time, a hefty fine, or both.

But, what happens if you never get served court papers? Can you still be held in contempt? The short answer is – no, you can’t. Keep in mind, however, that it is possible to get served without you knowing about it.

For instance, if the subpoena is served to someone at your residence, like your 16-year-old child, who then forgets to tell you about it, that still counts as service. So, you could still be in contempt of court if you end up missing the court date or not responding to the summons, even if you were not aware of it.

Get Help From a Criminal Defense Attorney

If you’ve been served with a subpoena, you need to get in touch with a criminal defense lawyer as soon as possible to advise you on the next step to take. But, whatever you do, do not ignore it, or else you might end up with a bigger problem on your hands.

If you have any legal queries, chat online with a Laws101.com attorney today.

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What Is the Punishment for Cyber Crime?

Legal Assistant November 10, 2020Administrative Law, Criminal Law, Regulatory Law, Resources

According to the FBI Internet Crime Report, the country loses more than $3.5 billion every year in internet crimes. The bureau’s Internet Crime Complaint Center (IC3) receives an average of 1,300 reports a day from individuals and businesses that have fallen victim to cyber crime.

Criminals are getting smarter by the day and are employing a host of highly sophisticated tactics to defraud unsuspecting victims of their hard-earned cash. Forget about those old infamous Nigerian Prince scams. Internet crime has evolved and takes on many forms, including hacking, identity theft, and computer fraud.

Federal and state governments have put laws in place that criminalize certain online activities. You need to read up on these statutes to understand what qualifies as cyber crime and the associated penalties. Here’s everything you need to know.

What Is Cyber Crime – an Overview

Cyber crime is defined as any criminal offense committed via the internet or aided in some way by various forms of computer technology. This definition has been expanded in recent years to include online harassment on social networks like Instagram, Facebook, and Twitter.

Sending sexually explicit photos using a smartphone also counts as cyber crime. Here are the most common examples of cyber crime you might encounter.

Phishing Scams

This is arguably the most common form of internet crime. It involves a fraudster posing as a legitimate and often well-known entity to trick unsuspecting victims into divulging personal information, including usernames, passwords, bank account information, and credit card numbers.

This mode of deception is a form of social engineering where cybercriminals manipulate victims into doing something.

Phishing Scam Example

Here’s a common phishing technique hackers employ to gain access to your bank account or steal your credit card information.

You hold a checking account at JPMorgan Chase. You receive an email one morning from what appears to be the fraud department at the bank alerting you on “… unauthorized or suspicious activity on your account…”

It might even notify you of “… a large purchase made using your credit card…” and subsequently instruct you to confirm your bank account or credit card details to allow the bank to “investigate” this activity and recover your lost funds.

Phishing scams take advantage of human psychology. Such emails are designed to look identical to the format used by the organization that the criminal is purporting to represent. When you click on the link provided, it directs you to a fake website that looks identical to the real one but with a slightly different address.

So, while the real JPMorgan address is jpmorganchase.com, the fake website may have a URL like jpmorganchaze.com, or any other with a subtle variation that you might not notice right off the bat.

Once you enter your username and password, the hacker would retrieve these credentials from the back-end of the fake site and use them to log into your actual account via the real website.

Online Identity Theft

Gone are the days when your biggest concern was having your wallet stolen on the subway and criminals using your credit card or driver’s license for their sinister motives. Fraudsters can now steal your identity by gaining access to personally identifiable information (PII) through the internet. They do this in any number of ways.

1. Unsecure Websites

When shopping on online sites that don’t have the “https:” prefix on the URL, any information you enter there is accessible to unauthorized third-parties. So, when you input your name, address, date of birth, and credit card information, hackers may gain access to the site’s database and steal your information.

2. Malicious Software

Spyware and other forms of malware can get installed on your device without your knowledge. This can happen in several ways, for instance:

Clicking on a pop-up ad
Downloading software or files laced with spyware
Filling out a form to access downloadable content
Opening email attachments from unknown sources
Visiting sketchy websites

Spyware runs discreetly in the background without your knowledge. It records all your browsing activities and monitors all the keystrokes on your mobile device or PC. Fraudsters are, therefore, able to collect your PII and use it to commit online fraud.

3. Weak Passwords

Using a weak easy-to-guess password for your financial and social accounts leaves you vulnerable to getting hacked. This is particularly common in accounts that don’t have any active multi-factor authentication security feature.

4. Discarded Mobile Devices and Computers

If you discard your device without wiping all your PII data, it can be an entry point for a fraudster to steal your identity and use it to commit crimes once they get their hands on it.

5. Targeting Kids Online

Children can innocently divulge sensitive personal information without even realizing it. Cybercriminals are increasingly targeting kids to get them to install spyware into their devices without their knowledge. They might achieve this by luring them into clicking on enticing ads or downloading an exciting game designed to capture their attention.

Cyberstalking

The cyberstalking definition is broad. The crime takes many forms but generally refers to harassment and bullying that takes place via online channels.

Most cyberstalking cases often start as seemingly harmless interactions between the perpetrator and the victim. These interactions then evolve into threatening messages or negative comments on social media that become annoying and sometimes, downright scary.

Once these messages make you feel harassed, and the perpetrator doesn’t heed your demands for them to stop, then it becomes cyberstalking. It doesn’t always have to involve direct communication. You might not even be aware that you’re being cyberstalked.

If an individual monitors your online activities to gather personal information on you to perpetrate crimes like identity theft, that also constitutes cyberstalking.

Online Harassment Laws

In 1990, California became the first state in the US to enact a specific stalking law. Since then, all 50 states and the District of Columbia have enacted similar laws. However, not all states have specific cyberstalking legislation, and there still isn’t a specific federal law that addresses cyberstalking in all its forms.

Because of this, prosecutors have come to rely on various state penal statutes that prohibit harassment, threats of a terrorist nature, or any actions that would be deemed as intimidating. Such laws also encompass threats convened through telephones, letters, and electronic communication technologies.

Despite this, legal scholars and critics argue that these statutes are inadequate for three main reasons.

They don’t address the repetitive nature of cyberstalking
The existing penal statutes don’t take into account the full range of bizarre behaviors encompassed in cyberstalking activities
They recognize the activity as cyberstalking only if there’s an explicit threat issued by the perpetrator

Some of the states that currently have cyberstalking laws in place include Alabama, Arizona, Connecticut, California, Florida, Oklahoma, Texas, and Wyoming. However, some of these statutes only address the online harassment of minors. They don’t protect adult victims of cyberstalking.

There’s also the issue of online anonymity that makes it difficult for the victims to identify their stalkers. The ongoing debate is how those internet users can be traced without infringing on their constitutionally-protected civil liberties.

Cyberstalking Examples

Cyberstalking takes many forms. Here are some common examples:

False accusations – It involves a cyberstalker setting up a blog or website specifically to post false information about the victim. They may also do it in chat rooms and online forums that allow public users to create posts.

Flaming – It involves the stalker posting comments laced with profanity or aggression (flamebait) to incite the victim into a heated exchange with them.

Gathering information – In this method of cyberstalking, the perpetrator approaches the victim’s friends and family members to obtain personal information to use it against the victim later.

Monitoring – The stalker tracks the victim’s online activities to gather data like their passwords and other sensitive information, which they later use to harass the victim or impersonate them.

Obsessive text messages – In this form of cyberstalking, the perpetrator sends dozens of text messages to the victim to torment them with baseless accusations.

They may also send these messages through their social media accounts or obsessively comment on their posts to remind them (the victim) of their perpetual presence.

Playing the victim – The perpetrator makes false assertions that they are being harassed by the victim. They usually do this with friends, family, and co-workers to garner support.

Posting insults – The stalker posts derogatory, insulting, or defamatory statements about the victim. This is common in social media sites like Facebook, Instagram, and Twitter.

Doxing

Have you ever posted something that you would otherwise be embarrassed to say in public? Maybe it was in an online forum while hiding your real identity. If this is something you frequently do, you better be careful. Someone might just dox you.

If this is the first time you’ve come across the term, you’re likely wondering – what is doxing? The term is short for “dropping dox.” It refers to an online attack in which a hacker digs up personal information and sensitive documents – hence the “dox” – to expose the real identities of individuals who post anonymously.

The goal of doxing is often to shame or embarrass the victim in the hope that the individual in question loses their job or ends up being shunned by friends and co-workers.

In a doxing attack, a hacker may publish the victim’s Social Security Number, credit card information, phone number, real name, home address, personal photos, and even their social media profiles. You might be surprised at just how easy it is for cybercriminals to dig up information on you even when you think your online identity is hidden.

This begs the question – Is it illegal to dox someone? Well, it depends. If the information about you that’s exposed is part of the public record, then no – it is not illegal. So, marriage and divorce records, traffic violations, and arrest records are all fair game.

It is, however, illegal if the information exposed isn’t part of the public record. This includes details like your credit card and bank account information or birth certificate.

DDOS Attack

DDOS is short for Distributed Denial-of-Service. This is a malicious cyberattack where a hacker attempts to disrupt the normal traffic of a network, service, or targeted server, by overwhelming it with a flood of requests.

As a result, the network resources get clogged up, preventing regular traffic from accessing these resources. The most common symptom of a DDOS attack is a service or site suddenly becoming unavailable, extremely slow, or exhibiting other performance-related issues.

Punishment for Hacking

There are several federal laws in place that address hacking. Some of the notable ones include:

The Computer Fraud and Abuse Act (CFAA)
The Defend Trade Secrets Act (DTSA)
The Electronic Communications Privacy Act (ECPA)
The Stored Communications Act (SCA)

The CFAA, however, is the main federal anti-hacking statute that outlaws the unauthorized access of another individual’s or entity’s computer system. Here are some examples of CFAA violations and their respective penalties.

Obtaining national security information: 10 years for first-time offenders; 20 years for a second conviction
Trafficking in passwords: 1 year for first-time offenders; 10 years for a second conviction
Unauthorized access to a computer to defraud: 5 years for first-time offenders; 10 years for a second conviction
Unauthorized access to a computer to extort: 5 years for first-time offenders; 10 years for a second conviction
Unauthorized access to a computer to obtain information:10 years for first-time offenders; 20 years for a second conviction

The monetary penalty associated with a particular cyber crime depends on its severity. A misdemeanor conviction, for instance, could result in a fine of up to $1,000, while a felony conviction may have a fine that exceeds $100,000.

Get the Best Legal Representation for Your Case

If you’re a victim of an internet crime or currently stand accused, you need to first take action on your cyber security posture and then get in touch with a cyber crime lawyer as soon as you can. They are well versed in the laws related to computer crimes and can help you at every stage of your case.

If you have any legal queries, chat online with a Laws101.com attorney today.

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What Happens to US Citizens Arrested or Detained Overseas?

Legal Assistant November 10, 2020Criminal Law, International Law, Resources

Traveling is a great way to see the world, experience new cultures, and make memories that will last a lifetime. However, it is not the time to break the local laws of the country you’re in. It doesn’t matter how law-abiding you are back home. Getting arrested or detained overseas is serious business.

It’s not like the movies either. The US Department of State will not get on the phone with the president of the country you’ve been arrested in to negotiate your release. That’s not how it works. Even the US Consular offices can only do so much. If you violate a law, you should be prepared to pay the price – which means you’re subject to the justice proceedings in that state.

Keep in mind as well that ignorance of the law is not a defense in any country. If you’re backpacking through Singapore, for instance, innocuously chewing gum, you will get arrested because that’s against the law there. Kissing in public in Saudi Arabia will most definitely land you behind bars.

So, what happens to US citizens arrested or detained overseas? Here’s everything you need to know.

Getting Detained vs Arrested – Do They Mean the Same Thing

The short answer is – no, they’re not. The main difference between the two all boils down to whether or not the individual has been charged with an offense.

If you’re detained, you have not yet been formally accused of committing a crime. The police simply keep you in custody on the grounds of “reasonable suspicion.” During that time, they would question you and investigate your activities. Once they’re through, they would then release you.

The situation is entirely different if you’re arrested. This only happens if you’re charged with committing a crime. Here’s an example to drive the point home.

Let’s say you’re a tourist in Columbia and the police there spot you coming out of a sketchy building that’s known to harbor a notorious drug baron. The fact that you’re a foreign national in that part of town makes you stand out like a sore thumb.

They stop you and question you based on the suspicion that you were there to buy drugs. If they’re not satisfied with your response, they may detain you to investigate why you were truly there.

If they then search your bag and find drugs on you, they would arrest and charge you with drug possession. That’s the difference between getting detained vs arrested.

What Are My Rights as a US Citizen in a Foreign Country?

The important thing you need to be aware of is – the US Bill of Rights only applies to Americans on American soil. It is not universal. So, the rights you enjoy at home, which are protected by the Fourth, Fifth, Sixth, Seventh, and Eighth Amendments, don’t mean anything when you’re in a foreign land.

If you’re touring Japan, law enforcement officers there can take one look at you and search you at will. They don’t even need any reasonable suspicion to do so. If they arrest you and charge you with breaking the law, they can keep you in custody for up to 28 days without bail before they arraign you in court. If you insist on standing trial, you don’t have the right to a jury.

Countries like Malaysia, Singapore, Saudi Arabia, and Iran are known to routinely execute drug offenders whether you’re a local or foreign national.

The point of these examples is that, when you travel overseas, you are subject to foreign and not US laws. So, if you’re arrested or detained for a crime committed in another country, your US constitutional rights don’t mean anything to foreign governments.

The same thing applies to abetting criminal acts on foreign soil. You are subject to the penalties stipulated by the laws in that nation.

US Embassies and Consulates

Some of the frequently asked questions we often get are – Is a consulate foreign soil? Are embassies considered foreign soil?

The answer to both these questions is – no, they are not. While they are indeed protected by international law and enjoy special governing rules and various immunities, the land on which they are built remains the property of the country they’re in. The 1961 Vienna Convention on Diplomatic Relations clearly defines how embassies are treated in foreign countries.

The US, for instance, owns the property on which its embassy in Mexico is built on. This doesn’t in any way mean that it forms part of US territory since it is still technically on Mexican land.

Foreign Prisoners

Every year thousands of Americans get arrested or detained overseas. It’s not unusual to come across these kinds of stories.

Remember Otto Frederick Warmbier? The US citizen arrested in North Korea and later imprisoned on a charge of subversion? Kai Li, the naturalized US citizen detained in China before later being sentenced to 10 years in prison on an espionage charge? These are just a few examples of Americans being arrested, charged, and sentenced overseas for crimes they committed in foreign nations. While the US Department of State will do its best to provide consular assistance to US prisoners overseas, they cannot:

Get American citizens out of jail or demand for their release
State to a foreign court that the individual is innocent of the crime they’ve been charged with
Pay legal, medical, or any other fees incurred in the course of their detention
Represent the US citizen in court
Serve as official translators or interpreters

US consular officials can only put you in touch with your family and an attorney, but that’s just about it.

Hostage vs Prisoner

A prisoner is an individual who is incarcerated while serving a sentence or during a trial. The hostage definition is – an individual who is held against their will to serve as security, whose release is based on the fulfillment or performance of certain conditions.

The official policy for the US government on the kidnapping of Americans overseas is to refuse to negotiate or yield to blackmail by terrorists. The rationale behind it is that paying a ransom to terrorists would encourage more hostage-taking, which would, in turn, become a steady stream of revenue for funding terrorist activities.

The Trump Administration, however, appears to have eased up on this approach. This is evident from the November 2019 release of two American hostages held by the Taliban in Afghanistan for over three years, after US diplomats secured a peace deal with the terrorist group.

This action was in defiance of the no-concessions policy that has been in place for close to half a century.

Understand the Local Laws Before You Travel

Anytime you travel to a foreign country, ensure that you read up on the local laws to understand what you can and cannot do there. The constitutional rights and liberties you enjoy on American soil do not extend overseas. So, it is possible to get arrested and imprisoned for breaking foreign laws.

If you have any legal queries, chat online with a Laws101.com attorney today.

Can I Sue My Employer If I Get Kidnapped?

Legal Assistant November 10, 2020Employment Law, International Law, Maritime Law, Personal Injury Law, Resources

Every year, more than 90 million Americans travel outside the US for work or leisure. However, the last thing you would expect to happen when you’re in a foreign country is to get kidnapped. That’s anyone’s worst nightmare.

Although kidnapping statistics held by the US government and private security companies are not usually released publicly, we estimate that number could be anywhere in the realm of 200-300.

In 2019, The US State Department added a new “K” indicator to the travel advisories it issues, denoting countries with an unprecedented risk of kidnapping or hostage-taking. So, if you’re a US citizen who works in any of those countries, that’s something you need to be wary of.

A frequently asked question we get from Americans working overseas is – Can I sue my employer if I get kidnapped? The answer to this question may surprise you. Here’s everything you need to know.

Piracy in Maritime Law

First, we’ll look at what happens if you’re kidnapped by pirates. But, to do this, you need to understand the various provisions of a 100-year-old maritime law known as the Jones Act.

The Jones Act, or the Merchant Marine Act of 1920 as it is also called, is a piece of federal legislation designed to protect American workers injured at sea. It allows sailors who suffer injuries or become sick in their line of work to pursue compensation from their employers.

If the injuries resulted from the negligent acts of the employer or coworker, the injured party has the right to sue for damages. Under the Act, ship owners can also be held liable if the accident occurs as a result of the unsafe condition of the vessel.

captain in cockpit controlling cruise ferry

Maritime Piracy

Now, you might be wondering what the Jones Act has to do with maritime piracy. Pirates are nothing like the charming, rum-loving antiheroes you envision. They are fearsome villains armed to the teeth with sophisticated weapons that they’re not afraid to use.

So, as a maritime employee, your line of work is inherently dangerous due to the risk posed by these pirates. Suppose you get injured in a pirate attack while performing your duties or survive a pirate kidnapping incident. In that case, you’re protected under various maritime laws, including international admiralty laws and the Jones Act.

So, you can sue your employer for damages depending, of course, on the nature of the circumstances leading up to the incident. The injuries you may incur aren’t just physical. You might also suffer psychological trauma, which is also grounds for an emotional distress lawsuit.

The Kidnapping of Oil Workers

If you work at an offshore oil rig, you are also protected by the provisions of the Jones Act. So, you can sue your employer if you end up getting kidnapped and held for ransom.

You would have to show that the company acted negligently by not living up to its duty of care to guarantee your safety in a region that’s known to grapple with security issues.

Terrorist Kidnapping

If you’re working in a foreign country and end up getting kidnapped by terrorists who then demand a ransom for your release, what is your employer’s role in the whole saga? Who is responsible for securing your release? And can you sue your employer for the injuries you suffer in the whole ordeal?

When you’re working in a high-risk environment, the threat of kidnapping is very real – a fact that your employer is well aware of. In such scenarios, companies usually have kidnap and ransom insurance for employees working overseas to cover such an eventuality. Your employer would also be responsible for meeting the medical expenses for any injuries you suffer.

If you feel that your employer acted negligently by intentionally sending you to work in a high-risk region without taking the appropriate measures to guarantee your safety, you can sue them for the injuries and the emotional distress you suffered at the hands of your captors.

Kidnap for Ransom

Sometimes, not all cases of kidnapping are terrorist-related. Case in point: The American woman kidnapped in Africa while on safari in Uganda.

In the incident, the kidnappers made a ransom demand of $500,000. The tour company that had organized the excursion paid an undisclosed amount of money in ransom, subsequently securing the 35-year-old woman’s release.

Given the fact that she was touring the country out of her own volition, her employer is under no obligation to ensure her safety and security when traveling to a high-risk country for non-official purposes.

So, if you travel for leisure to a country that’s on the State Department’s travel advisory list, and you end up getting kidnapped and held for ransom, you have no legal grounds to sue your employer.

Kidnapping Survival Guide

Getting kidnapped is, no doubt, a terrifying experience. But, keep in mind that your chances of surviving the incident are high. After all, your value to your captors is contingent on keeping you alive.

Here’s what to do if kidnapped overseas to enhance your chances of being released alive.

A kidnapping can occur anywhere. Your best chance of escape is at the beginning. So, cause as much commotion as you can to draw attention to yourself and make others aware of the abduction. That way, they can alert the authorities.

Once you’ve been forced into a vehicle, don’t struggle. Try your best to remain calm and try as much as possible to visualize the route being taken if you’ve been blindfolded. Pay attention to any street noise or smells, and monitor the amount of time taken between stops.

If you work in a high-risk area, it’s always a good idea to have a discreet GPS tracker on you at all times. It’ll make it easier for your employer to liaise with the authorities to get to your location.

Whatever you do, do not antagonize your captors. Focus on staying alive. Comply with all orders and instructions you’re given. If you’re interrogated, keep your responses short. Don’t divulge unnecessary details.

Maintain your physical and mental strength while in captivity. Eat whatever food you’re given and use flexing and isometric exercises to keep your muscles toned if your movement is extremely restricted.

Get What You Deserve

If you get kidnapped while performing your duties, you can sue your employer for the physical and emotional injuries you incur during the ordeal. A competent lawyer can help you prove that your employer neglected their duty of care towards you and pursue damages on your behalf.

If you have any legal queries, chat online with a Laws101.com attorney today.

What Happens if You Get a Job While on Unemployment?

Legal Assistant November 10, 2020Employment Law

Since the onset of the coronavirus pandemic in mid-March, more than 57 million Americans have filed for unemployment. With several states still under lockdown, the airline, events, hospitality, and leisure sectors are just a few of the industries that have been reeling from the devastating effects of the disease. It has left millions of people out of work.

If you’re one of them, any form of temporary work you get during this time that can inject extra cash into your household is most certainly welcome. Besides, it’s also a great way to make a good impression on prospective employers, which increases your chances of landing a more permanent job.

Nonetheless, the most common fear among unemployed individuals seeking temporary work is – What happens if you get a job while on unemployment? Will it impact your benefits? Can you still claim unemployment while working a part-time job? Here’s everything you need to know.

How Does Unemployment Work?

The US Department of Labor generally has two set criteria that you need to meet to qualify for unemployment benefits.

First, you need to be out of work through no fault of your own. Getting laid off is one such instance. If you got fired for gross misconduct or quit, you don’t qualify for unemployment.

Second, you need to meet your state’s requirements on the wages you’ve earned and time worked. Take New York, for instance. The state law there requires that:

You have worked at least two calendar quarters in the previous year leading up to your unemployment. This is referred to as the base period.
You earned a minimum of $2,600 in any of those quarters.
During the base period, you made 1.5 times the amount you earned in your highest-earning quarter that calendar year.

Sounds complicated, right? Don’t worry. If you got laid off from a solid long-term job, it’s more than likely that you already qualify and can lodge an unemployment claim.

Do Employers Pay Unemployment?

Many people mistakenly believe that unemployment insurance benefits are derived from a fund financed by employees – a lot like the way Medicare or Social Security works. However, it is the employers who fund unemployment benefits, and at a much higher amount than the cost of the claim itself.

The federal government also funds a portion of it. Pennsylvania, New Jersey, and Alaska are the only three states in the country that levy unemployment taxes on employees. Even then, it’s only a small percentage of the overall cost.

How to File for Unemployment

The process of filing for unemployment varies from state to state. Some have a waiting period, meaning you need to have been unemployed for a specific duration before you’re allowed to file an unemployment application. This could be anywhere from one to two weeks.

Different states also have different limits on the total amount you can receive in benefits, as well as different formulas for how those benefits are calculated. If you received paid vacation time or severance pay when you left employment, this could also impact how soon you can start receiving benefits.

Nonetheless, your best bet is to start the process as soon as you can since it could potentially be a long-drawn-out process. To file for unemployment, the first step would be to get in touch with the unemployment insurance agency in your past employment or state of residence.

If you worked in multiple states, choose the specific one where you’ll draw your benefits from. It’s a good idea to “shop around” and choose a state that works in your favor.

The next step is to file your application. Depending on the state in question, this can be done in person, phone, or online.

Make sure that all the details you provide in your unemployment application are correct. It doesn’t hurt to double-check the information you fill in, like the dates you were in employment, your respective wages at the time, the company address, and so on.

Collecting Unemployment Benefits

Once you start collecting unemployment, you have to file weekly or bi-weekly claims detailing the jobs you’ve applied to, the offers you’ve received, and any earnings you’re getting from part-time work. If you’ve turned down any job offers, you’ll need to explain why.

While the requirements set out by state unemployment agencies vary, most of them require that you attend in-person meetings to update them on the progress of your job hunt. They may even ask you to attend career training sessions to help you increase your job prospects.

Keep in mind that unemployment benefits are also subject to federal income tax. So, you need to report it when filing your annual tax returns. A frequently asked question we often get is – What happens if employer does not respond to unemployment claim?

In most states, if an employer responds to a claim late or fails to respond entirely, you will automatically get the benefits due to you. From the employer’s perspective, it doesn’t stop there.

Several states across the country have started imposing stiff penalties on companies that don’t respond to unemployment claims in a timely fashion. These may range from revoking the employer’s right to appeal to paying higher tax rates on unemployment benefits.

What Reasons Can You Be Denied Unemployment?

If you don’t meet your state’s criteria, there’s a good chance you may be denied unemployment benefits. This could be due to several reasons. Here are the five most common ones.

1. You Didn’t Make Enough Money During the Base Period

In most states across the country, your eligibility for unemployment will be determined by looking at the amount of money you made during a given base period. This is generally the first four of the five most recent fiscal quarters.

So, if, for instance, you lodged your claim in April 2020, the state will look at your income between January and December 2019 – which are the first four of the most recent five quarters.

If you don’t meet the minimum earning amount per your state rules, you will be denied unemployment. You could appeal the decision, but that may not do much to change the outcome. You’re better off exploring other options to get the income you need to survive.

2. You Didn’t Make Enough Money During Your Highest Earning Quarter

Aside from your earnings during the base period, some states also have a highest-earning-quarter rule. It requires you to have made a predetermined minimum amount of money in your highest-earning quarter of the base period. If you don’t meet the threshold set out by your state, then your claim will be denied.

3. You Failed to Submit All the Required Information in Your Application

Sometimes, your unemployment claim may be rejected because you left out some crucial information in your application. For instance, you may have failed to list one of the companies you worked for in one of the quarters of your base period. As a result, your earnings from that particular employer may not count.

This could cause your application to be denied if the money you made doesn’t meet the minimum threshold required. Although you can appeal the decision and provide all the information you previously failed to include, it’s always better to double-check your application to prevent avoidable delays in claiming your benefits.

4. Your Employer Is Still Paying You for Family or Sick Leave

If you apply for unemployment while your employer is still paying your family or sick leave benefits, your claim will be denied. However, you can lodge a fresh application once these benefits run out and are still unable to go back to work.

5. You Quit Your Job

Under normal circumstances, quitting your job would automatically disqualify you from receiving unemployment.

However, due to the coronavirus pandemic, the government made an exception to allow those who quit because of COVID-19 to claim unemployment. This was to relieve people from having to choose between their health and their financial wellbeing.

Can Self Employed People Get Unemployment?

This is a frequently asked question among self-employed individuals, including independent contractors and gig-economy workers. Before the onset of the coronavirus, these categories of individuals were not eligible for unemployment. However, the CARES Act, which was passed in response to the pandemic, changed all that.

It allows self-employed individuals whose income has been affected by the health crisis to now apply for unemployment benefits. The Act established the Pandemic Unemployment Assistance (PUA) program, specifically designed to cater to those individuals who wouldn’t typically qualify for regular unemployment insurance benefits.

Confusion sometimes arises as to what “unemployment” means when you’re a contractor. This is because you might experience periods when there’s little to no work and other times when you get quite busy.

PUA stipulates that you would still be eligible for unemployment if you experience what it terms as a “significant diminution” of work as a direct result of the pandemic.

Can Furloughed Employees Collect Unemployment?

First, it’s important to understand the difference between being furloughed and laid off.

A furlough refers to an unpaid leave of absence from work. Furloughed employees still technically have a job to go back to, but they don’t earn a salary for the period they’re away from work. Being laid off, on the other hand, is a permanent termination of employment.

Since unemployment insurance is primarily managed at the state level, whether or not a furloughed employee can collect benefits depends on where you live and work. Some states allow it while others don’t.

In the wake of the coronavirus pandemic, Congress passed a stimulus package to temporarily streamline this issue on a wider scale by extending unemployment insurance benefits to furloughed workers as well.

Do You Have to Repay Unemployment Benefits?

Unemployment benefits exist to help you get by when you’re out of work. When you finally land a job and are now getting a paycheck once more, you might be wondering whether you need to pay back the benefits you received during the period you were unemployed.

The good news is – no, you don’t. However, this is contingent on whether the unemployment commission determines that you were paid in error or that you committed fraud.

If, for instance, you received a higher payment than you were entitled to due to an error on the state’s part, then you’ll have to pay the extra money back. Alternatively, you can appeal and ask the commission to waive the repayment requirement.

Whether or not your request is granted ultimately depends on your ability to repay the money, as well as the reason for the overpayment.

If the overpayment you received was the result of fraud on your part, you’ll not only have to pay the money back, but you may also have to part with a hefty penalty and/or interest. In Texas, for instance, you would have to pay back the benefits you incorrectly received, along with a 15 percent penalty on the amount in question.

Some common instances of unemployment fraud include:

Lying about your availability for work to continue collecting unemployment checks
Giving false information in your unemployment application
Failure to disclose the amount of money you receive for working while you’re still on unemployment

Keep in mind that fraud is a crime. So, in addition to repaying the money together with interest and penalties, you could potentially be charged, prosecuted, and sentenced to serve time.

What Happens if You Don’t Pay Back Unemployment?

For starters, the money could be withheld from your paycheck and any tax refunds due to you or your spouse until the amount is repaid in full. It could also be recovered from any lottery winnings you might get.

The money could also be deducted from future unemployment benefits that you may be entitled to. Finally, the state could bring a lawsuit against you.

The Cushion You Need to Land Softly

The bottom line is this: If you get a job while on unemployment, you’ll need to disclose this to the concerned state unemployment agency. If you get a full-time job, then you’ll need to stop the benefits payments. Failure to do so will be regarded as fraud, in which case you’ll have to pay the money back with interest and penalties.

If you’re self-employed, an independent contractor, a gig-economy worker, or are working a part-time job, then you are eligible for unemployment under the provisions of the CARES Act.

If you’re not entirely sure where you stand or stand accused of fraud, talk to an unemployment lawyer today to explore all your options.

If you have any legal queries, chat online with a Laws101.com attorney today.

What Happens if You Die Without a Will?

Legal Assistant November 10, 2020Wills

Death is often a taboo subject for most people. It’s uncomfortable and downright scary to even think about. The unfortunate reality is that it’s a part of life we can’t escape, and sadly, the one part that we have the least amount of control over.

That’s why it’s important to have all your affairs in order, to avoid causing turmoil for your loved ones after you’re gone. It gives you some semblance of control over what happens to your estate, your children, and your pets. You get to share out your assets among those you hold dear.

But, what if death catches you off-guard? What happens if you die without a will? Here’s everything you need to know about it.

Intestate vs Testate – What’s the Difference?

First, let’s look at the intestate definition. Contrary to what it sounds like, intestate isn’t a road that links two states. It refers to dying without having left a legal will in place or dying intestate as it is commonly called.

When this happens, the intestate succession laws in your state kick in to determine how all your assets – real estate, money, family heirlooms, and pets – will be given away and by whom. It happens through a process known as probate.

On the other hand, testate refers to the existence of a valid will at the time of an individual’s death.

How Does Probate Work Without a Will?

Probate is the legal process that occurs after an individual dies to ensure that the deceased’s property and assets are given to the correct beneficiaries. It also ensures that any outstanding debt and taxes are settled in full. This addresses the question of what happens if a deceased person owes taxes – whether or not they died having written a will.

However, keep in mind that the Collection Statute Expiration Date (CSED), as provided in the Internal Revenue Code, sets the statute of limitations for tax collections at 10 years. So, if an individual dies with unpaid taxes, 10 years after the date the tax liability in question was assessed, the IRS has no authority to pursue tax collection at that point.

The probate process is quite straightforward when there’s a will in place. All the probate court does is check that the will in question was properly signed and witnessed to ensure its validity and legitimacy. It then oversees the asset division process to make sure that it is carried out as per the decedent’s wishes. This is done by the named executor.

Probate without a will, on the other hand, is more complex. The judge first has to appoint the personal representative. This individual serves the same role an executor does when there’s a will in place.

The court then has to identify all the properties and assets that belonged to the deceased and then carry out a valuation process to determine the estate’s total value. It also has to find all the creditors and potential intestate heirs before fairly distributing the property.

Property That Does Not Need to Go Through Probate

Even in the absence of a will, some items don’t need to go through the probate process. Here are some of the most common ones:

Beneficiary-named property – Any property that already has a beneficiary named in the document doesn’t go through probate. Life insurance is one such example. Only the beneficiaries listed on the policy or deed are entitled to the payout from it.

Jointly held property that has survivor’s rights – If the deceased held a jointly owned property with someone else, the surviving party named on the deed would now have sole ownership of the property in question.

TOD and POD items – Using terms like “Transferable on Death” and “Payable on Death” in paperwork for retirement accounts, stocks, bank accounts, and even vehicles ensure that these items by-pass the probate process and go straight to the listed beneficiaries.

Property placed in a living trust – Any property placed in a living trust is owned by the trust and not the deceased. So, the items there are not subject to the probate process.

Property That Has to Go Through Probate

Generally, if the following items are already dealt with in your will, the probate process becomes a lot easier since you’ve addressed who exactly will get them. The judge plays more of an oversight role.

On the flip side, if there were no will in place, the judge would then step in to assist the personal representative in deciding what happens to them.

Sole ownership property – When the property in question only has the deceased’s name listed on the title or deed, and there’s no TOD or POD, the probate court would have to determine ownership.

Investment property with a partner – This occurs when individuals are listed as “tenants in common.” In such instances, the probate court has to determine what happens to the deceased’s investment share.

Non-titled property – This refers to items that don’t typically have any paperwork showing ownership, but it would be presumed that they belonged to the deceased. These include clothing, furniture, appliances, and any other household goods. The probate judge would have to distribute them among the beneficiaries.

Inheritance once the beneficiary has died – If an individual died with a will that left everything to their spouse, but the spouse in question died before the will was updated, the probate court would have to step in to decide how the estate will be distributed among the surviving beneficiaries.

Protect the Ones You Love

The probate process can be quite complex, and the laws that govern intestate succession vary widely depending on the state you live in. A will makes everything simpler and gives you peace of mind knowing that your loved ones will be well taken care of even after you’re gone.

If you’re wondering – Do I need a lawyer for a will – the answer is, no, you don’t. There are countless DIY kits and estate planning software available online.

Nonetheless, it’s always a good idea to hire a probate lawyer to help you draft a will that meets the legal requirements of your state and provide you with useful estate planning strategies that work.

If you have any legal queries, chat online with a Laws101.com attorney today.

What Is a Probate Lawyer?

Legal Assistant November 10, 2020Resources, Wills

Jimi Hendrix, the legendary guitarist, died without a will in 1970, leaving behind an estate that’s currently valued at more than $160 million. And now, more than five decades later, the bitter battle over its control rages on.

This is a prime example of what could go wrong when people die intestate – or without a will. It leaves your loved ones vulnerable, and more often than not, you’ll have all sorts of people coming out of the woodwork to claim a stake.

You don’t have to be a wealthy celebrity to have a will. If you have any assets that matter a great deal to you, it’s always better to decide while you’re still alive who should get them. If you don’t, then a probate lawyer would have to step in after your death to help your surviving beneficiaries get their share of your estate.

So, what is a probate lawyer, and what can they do for you? Here’s everything you need to know.

What Does Probate Mean?

Probate is a legal term that refers to the process of proving a will. It means making sure that the deceased’s estate is distributed fairly among the rightful heirs, whether or not there was a will left behind.

If there was no will left behind, the process must go through probate court to decide how the assets will be distributed among the deceased’s loved ones. For smaller estates, the probate process doesn’t usually take long. The matter can be concluded in a matter of weeks.

However, probate for bigger estates can take several years, especially when individuals with legitimate claims to the property and assets file petitions in court to contest the will. So, as you can expect, this could end up dragging out the process even longer.

What Does a Probate Lawyer Do?

Probate lawyers wear many hats. The exact role they play in a probate process ultimately depends on whether or not the decedent had drafted a will before their death. Here’s what a probate lawyer does in both instances.

The Role of a Probate Attorney When There’s a Will

If an individual dies testate or with a legal will, the concerned parties may retain a probate lawyer in an advisory role to offer guidance to the concerned parties. These include the beneficiaries or the estate executor.

For instance, the attorney may inspect the will to check that it wasn’t created under duress or in a way that would contravene the interests and wishes of the person. This is particularly important if the decedent was elderly and suffered from dementia.

The Role of a Probate Attorney When There’s No Will

If an individual dies intestate, the decedent’s estate is distributed among the rightful beneficiaries according to the intestacy laws in the state where the property is located. Although these laws vary widely, in most states, the surviving spouse receives all the property.

In such instances, a probate attorney may be hired to help the estate administrator – who plays a similar role to the executor – in the distribution of the assets according to the state laws.

Keep in mind that regardless of what the deceased’s wishes were or the needs of the family members, the probate lawyer can only act within the confines of the state’s intestacy laws.

If one of the deceased’s relatives wants to become the estate’s administrator, the probate lawyer can help file renunciations with the probate court from all the other relatives. A renunciation is a legal statement from all the other beneficiaries renouncing their right to administer the decedent’s estate.

Other Roles of a Probate Lawyer

Aside from that, a probate attorney also helps the administrator/executor to:

Settle the deceased’s bills and debts
Collect and manage life insurance proceeds
Determine whether the estate owes any taxes
Find and secure all the deceased’s assets
Get the decedent’s assets appraised
Manage the estate’s checkbook

Keep in mind that wills and estate planning generally fall within the same area of law. However, there’s a distinct difference between a probate attorney and an estate planning lawyer.

The former works with living clients on how their estates should be administered when they die, while the latter deals with the estate administration process after the individual dies.

So, what percentage does a lawyer get for settling an estate? The answer to this varies widely and will likely depend on the complexity involved in the probate process.

One lawyer may charge you a flat fee while another may prefer to bill you by the hour. However, most charge a percentage of the estate’s value. This could be anywhere between 10 and 40 percent of the settlement amount.

When Does an Estate Have to Be Probated?

Contrary to what you might believe, not every estate has to go through the probate process. It is only required when there are no other means through which the decedent’s property can be transferred to the estate heirs.

If the individual had taken steps to distribute the assets before death, the estate doesn’t need to be probated. For instance, life insurance policies and retirement accounts usually have a designated beneficiary. These go directly to them on the death of the principal, subsequently by-passing the probate process.

The same goes for bank accounts with a TOD (transfer on death) or POD (payable on death) beneficiary designation and jointly owned assets with survivorship rights. In the latter, the surviving owner automatically inherits the deceased’s share of the property or asset.

In case you’re wondering how to avoid probate, here are three easy steps you can take:

Name beneficiaries on all the accounts that you own. These include bank, brokerage, retirement accounts, and life insurance policies, and pension plans.
Create a trust that leaves your assets and property to your beneficiaries upon your death. This allows for asset distribution without getting the courts involved.
Hold your property jointly with your spouse or partner. That way, ownership automatically passes to them upon your demise.

Get Legal Help

If you were named the executor of an estate, or a loved one died without a will, you need to get in touch with an experienced probate attorney as soon as possible. They’ll hold your hand through the entire process to ensure that the decedent’s estate is distributed fairly among the rightful beneficiaries.

If you have any legal queries, chat online with a Laws101.com attorney today.

average settlement for car accident featured image

What Is the Average Settlement for a Car Accident?

Legal Assistant November 10, 2020Personal Injury Law, Resources

You’re driving down the street for a quick grocery run. You’re keeping to the speed limit like the good driver you are bobbing your head softly to your favorite jam on the radio. You slow down as you approach the red light, and then, bam! Someone rams into your car from behind.

Great, just what you need – a car accident on a Sunday afternoon.

You step out of the car and head over to the back to inspect the damage. And much to your surprise, the other driver seems pretty annoyed at you for “braking suddenly” without warning. You’re confused and a little amused. The nerve…

It looks like you have to wait for the police to arrive at the scene and determine who’s responsible. It looks like it’s going to turn into an insurance nightmare.

This is the first time something like this has happened to you, and a million questions start running through your mind. Who’s going to pay for this? Should you hire a lawyer? What is the average settlement for a car accident anyway? How will you prove that the other driver was at fault?

Here’s everything you need to know about it.

Car Accident Settlement – Can You Put a Price on It?

Let’s get one thing straight from the get-go. There’s no such thing as an average car accident settlement. It’s not a one-size-fits-all type of thing. Accidents vary in their severity, and so do the settlement amounts that come with them. It all boils down to the nature of the damages.

Some estimates put that number at around $20,000 to $30,000 for what would be considered a minor to a moderate collision. Severe car accidents, on the other hand, have settlement amounts that go well into the six-and seven-figure realm. Only a car accident lawyer would be able to give you a true reflection of what your settlement amount could potentially be worth.

The same applies to the actual settlement amounts truck accidents have. Once again, it’s all about the specific circumstances surrounding that particular incident and the extent to which the victim suffers physical, emotional, and financial injury.

You’re now likely wondering when to get a lawyer after an auto accident or if you should get one at all. The thing is – if you have to ask that question, then it’s probably a sign that you need to retain a lawyer as soon as you possibly can.

As a rule of thumb, anytime you’re going up against an insurance company with gladiators for lawyers, you should probably lawyer up as well.

Insurance Companies Are Not Your Friend

Suppose you were involved in a car accident that resulted in physical injuries; you need to get a lawyer to help you file a claim with your insurance company along with that of the at-fault party. Here’s why.

Insurance companies may look like they’re in your corner, but they are not. At the end of the day, they’re running a business. As you know, every enterprise’s goal is to minimize the amount of money leaving the business and maximize what’s coming in. It’s all about their bottom line.

So, anytime a company has to pay out claim settlement, it’s bad for business. That’s why you need a lawyer to handle this process for you. Otherwise, you might get much less than what you deserve.

Benefits of Hiring a Lawyer After a Car Accident

Here are some of the benefits of retaining a lawyer straight away:

They are in a better position to identify all the parties from whom you can recover compensation.
They can evaluate all the economic and non-economic losses you suffered in the accident and demand a settlement amount that adequately compensates you.
They are familiar with all the different tactics insurance companies use to get you to settle for less.
They protect your rights throughout the entire process and are not afraid to file a lawsuit if the insurance company refuses to settle your claim for a reasonable amount of money.

If several weeks have gone by and you’ve been handling the claim yourself but don’t appear to be making much headway, you’re likely wondering – When is it too late to hire a lawyer? The good news is – there’s no time limit. As long as you haven’t signed or agreed to any settlement, you can retain a lawyer at any point to pick up from where you’ve left off.

hand shake after car accident settlement

How Often Do Auto Accident Settlements Exceed the Policy Limits?

It is hornbook law that car accident victims can get full compensation for all the economic and non-economic losses and injuries caused by an accident. In reality, however, it’s not often that you come across cases where the victim received a settlement that exceeded the defendant’s insurance policy limits.

That is not to say it’s impossible. It’s just extremely rare. If your claim exceeds the policy limit, it is entirely likely that your attorney will opt to go the lawsuit route if they believe you have a strong case.

How Much Do Lawyers Take From Settlement?

Most car accident lawyers work on a contingency fee arrangement. This is where the attorney agrees to represent you but only collects their fee when the claim is resolved in your favor. If they lose, they don’t get paid.

The next logical question might be – why do lawyers take cases on contingency? After all, it might seem like they’re taking on a big risk.

Well, lawyers only agree to this arrangement when they’re assured of a quick and easy settlement. And the reward they get per case is quite substantial. A typical contingency fee in a car accident case could range anywhere between 25 and 33.3 percent if the case settled before trial and up to 40 percent if it went all the way to trial.

It’s a win-win for all since this arrangement serves as an incentive to get you the highest possible settlement amount in the shortest time.

Get an Experienced Lawyer to Get You the Best Settlement

If you were injured in a car accident, you need to get in touch with an attorney as soon as possible. Don’t attempt to handle the claim on your own. You’re no match for the team of attorneys representing the interests of the insurance company.

That way, you can rest easy knowing that your rights are protected throughout the process.

If you have any legal queries, chat online with a Laws101.com attorney today.

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