WHY SHOULD I HAVE A WILL AND HOW DIFFICULT IS IT TO GET ONE?

May 2nd, 2012

If you die without a will (also called a “Last Will & Testament”) in the State of Florida, you will have no opportunity to direct to whom or to what (e.g. a charity) your property will go. When you die without a will, your real and personal property is distributed according to the state’s “intestacy” laws (dying with a will is called “testate;” dying without a will is “intestate”). Florida’s intestacy law gives your property to your closest relatives, beginning with your spouse and children, or your parents if you are not married and have no children. If there is no spouse, no children and no parents, increasingly distant relatives must be located, including siblings, grandparents, aunts and uncles, cousins, etc. If no living relatives by blood or marriage can be located, your property will be taken by the state. No one should permit that to happen.

If you have minor children, you can take the opportunity in a will to name a proposed testamentary guardian to care for your children and their property in the event that you die before your children reach the age of majority. In most instances, if there is a surviving parent, that person will automatically become the guardian. However, if the parents of the minor children are divorced and one former spouse has been awarded legal custody of the children, that parent can name a proposed guardian in his or her will and set forth the reasons why they believe guardianship by a third party would be preferable to the surviving parent. While the naming of a person other than the natural parent may not be binding, the court will most likely investigate to make a determination of whether the surviving parent is fit or whether the named guardian should be approved.

In your will, you will have the opportunity to select a personal representative, the person that will administer your estate and carry out your wishes following your death. In Florida, the personal representative (called an “executor” in some states) must be 18 years or older and cannot have a felony conviction. While most people name close family members or long-time friends as personal representatives, some people appoint bank officers, accountants and even their lawyers as the personal representative. Co-personal representatives can be named if you want more than one person to work together to administer the estate. Your will should also name an alternate personal representative if for some reason your first choice is unable to serve.

A personal representative should be a mature, responsible person. Following your death, the duties of a personal representative include, but are not limited to, filing the original will with the probate court, petitioning the court for letters of administration, inventorying the assets of the estate (including bank accounts, vehicle and boat titles, real estate deeds, stocks and bonds, etc.), open and inventory the contents of any safety deposit boxes, sending notice to creditors and paying valid creditor claims, file tax returns when required, re-title any real property as necessary, distribute personal items to named beneficiaries, file accountings as required and close the estate after all claims are paid and all assets properly distributed. A personal representative may be compensated for services rendered as provided in the will or as set forth in § 733.617, Fla. Stat.

Preparing a will need not be difficult and can be done without the assistance of a lawyer, but there are steps that need to be followed to make it a valid will under the laws of Florida. To be a valid will, the testator must sign the will in the presence of two witnesses, who must also sign the will. A holographic will – one that is handwritten by the testator and not signed in front of witnesses – is not a valid will in the State of Florida. It is best to seek the advice of counsel to make sure your will is valid and self-proving, which can speed up the probate process. Additionally, if you want to disinherit your spouse, or you think your will might be disputed at the time of your death, you should consult with an attorney.

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HAZING: CRIMINAL CHARGES AND BEYOND

May 2nd, 2012

By Jesse W. Smith

Recent incidents involving students and organizations of Florida Universities have put a spotlight on the practice of hazing. While incidents of physical violence such as the tragic death of a band member at FAMU receive the most press coverage, the laws concerning hazing in Florida are extremely broad and apply to conduct far less egregious than those resulting in wrongful death or personal injury. Under Florida Statute 1006.63, it is not only unlawful to engage in physical acts against another person for “admission into or affiliation with any organization,” but also to subject another person to forced consumption of food or beverages, embarrassment, social exclusion, or serious risk of personal injury. Such broad language means that while fraternities and athletic clubs are often singled out by the news, any club or even social group must be wary of “initiation” procedures. Moreover, simply exposing a prospective member to risk or discomfort may trigger the misdemeanor provisions of the statute and subject a person to up to a year in the county jail. Students and affiliates of universities should also be mindful that the possible victims or complainants CANNOT WAIVE CRIMINAL LIABILITY. A common reaction to reports of “paddling” or other rituals that cause little to know injury is, “The pledges knew it was part of the process and they were fine with it, so what’s the problem?” The problem is the statute specifically states consent is not a defense, and it is the Office of the State Attorney, not the victim that decides if a prosecution will proceed.

Of additional concern to university students is the internal disciplinary policy of the educational institution. Every university has its own administrative system of discipline that may punish students in addition to, or exclusive of a criminal prosecution. Often the disciplinary guidelines have even broader definitions of conduct that would be considered in violation of school policy. For example, criminal charges typically cannot be brought against a person for simply failing to act or intervene, although such conduct may be actionable where there was a well defined plan or ritual. However, failing to act and more importantly failing to report hazing behavior is almost always grounds for academic discipline as persons have far narrower rights against self-incrimination in the administrative process. While discipline through the school does not carry penalties such as jail, it can result in a disciplinary record that restricts academic or professional options in the future, or in some cases suspension or expulsion.

Whether you are facing serious felony hazing charges or academic discipline, an experienced legal advisor can often be the key to avoiding long term consequences. The attorneys at Avera & Smith, LLP, have assisted many students through the criminal and administrative process surrounding allegations of hazing. If you are concerned about potential charges, contact our office today for a free consultation.

Tags: Florida Personal Defense, Hazing
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Stand Your Ground: How Are Your Rights To Self-Defense Different In Florida?

April 4th, 2012

By Jesse W. Smith

The shooting of Trayvon Martin, a tragic loss of life regardless of the circumstances that are ultimately determined to have preceded it, has sparked national debate of Florida’s laws governing self defense. In many cases pundits have resorted to absurd exaggerations of the so called “Stand Your Ground Law” by characterizing it as an unbridled license to kill granted to gun-crazed Floridians. However what are the real differences in Florida’s approach to use of force from the traditional principles of self-defense?

Chapter 776 of the Florida Statutes codifies the guidelines for “Justifiable Use of Force.” The common name, “Stand Your Ground,” is a term that arises from a section of the law that states a person who is standing peaceably in any place they have a legal right to be, “…has no duty to retreat and has the right to stand his or her ground and meet force with force…” This item is one of a handful of changes to the traditional principles of self defense, as it replaced a theory that unless one was in their home, they had a duty to retreat and avoid conflict until such option was impractical. Another critical difference concerns one’s rights in defending themselves against intruder’s to their home or vehicle. Under Florida law, when an individual attempts to forcible enter the residence or vehicle you are legally occupying, it is presumed that you are justified in your use of deadly force. However, besides this limited presumption, what has largely been lost in the recent debate is that the statute requires in all cases that the individual using force act reasonably. In other words standing one’s ground and meeting force with force, outside of your home or car, is not a carte blanche to shoot an aggressor where there is no reasonable expectation that they would cause serious injury.

The limited information that has been disseminated in the Trayvon Martin case casts significant doubt as to whether or not the unique aspects of Chapter 776 even apply to the case, regardless of which summary of events you believe is most accurate. If in fact, as Trayvon Martin’s family and friends advocate, Mr. Zimmerman was “chasing” Trayvon and shot him in the process, the law would offer no protection. There is a specific provision that bars one who initially provokes danger or acts as an aggressor from invoking legal protection. In the alternative, if Trayvon Martin did assault and seriously injure Mr. Zimmerman and was shot in the course of the struggle, it is simply a traditional case of self-defense. Under that scenario George Zimmerman neither acted in defense of his home, nor stood his ground in the face of impending assault. The question will simply be, was he reasonable in believing the use of a firearm was necessary to defend his person? This is self-defense as it has been analyzed and understood since the birth of common law.

The one aspect of Florida’s law regarding use of force that is most critical to individuals charged with serious crimes is the fact that it goes beyond mere defense and actually confers immunity from prosecution. If a person is charged with a crime where this protection may apply, he or she is entitled to a pre-trial hearing where a judge will determine if prosecution is legal. If the defendant prevails at this hearing, the State is barred from proceeding to a jury trial in the case. Of particular importance to the Trayvon Martin case is the fact that this protection extends all the way to the arrest phase. Under the law the police may not even arrest an individual without probable cause to believe the use of force was unjustified. Whether sufficient probable cause existed to arrest Mr. Zimmerman is impossible to determine without a full picture of the events, however, this provision of the law has been conspicuously absent in the public push to have charges brought in the case.

Over the last 12 months, AVERA & SMITH, LLP, has successfully used the provisions of the “Justifiable Use of Force” statute to defend multiple individuals accused of serious crimes. Under the stringent gun crime sentencing laws of Florida, persons charged in relation to use of a firearm face mandatory terms of imprisonment of 10 years to life. If you are facing charges related to the use of force in your own defense, contact our office for a consultation and discussion of your rights and defenses.

Tags: Florida Personal Defense, Stand Your Ground Law, Trayvon Martin
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Preventing Tobacco Use Among Youth and Young Adults: A Brief Summary of the 2012 Report of the Surgeon General

April 4th, 2012

Preventing Tobacco Use Among Youth and Young Adults: A Brief Summary of the 2012 Report of the Surgeon General

(culled from the Report by Dawn M. Vallejos-Nichols)

On Thursday, March 8, 2012, following introductions at a press conference in Washington, DC from the Secretary of Health and Human Services, Kathleen Sebelius, and Howard Koh, Assistant Secretary for Health, the United States Surgeon General, Regina Benjamin, M.D., M.B.A. introduced to the nation and the world a comprehensive document entitled, “Preventing Tobacco Use Among Youth and Young Adults: A Report of the Surgeon General.” This Surgeon General’s report on tobacco is only the second since the reports began in 1964 to focus solely on young people. The first, “Preventing Tobacco Use Among Young People,” was published in 1994. The purpose of this new report is to update the science of youth smoking with the considerable research accomplished since 1994.

Cigarettes are the only legal product in the world that cause one-half of their long-term users to die prematurely. (Fagerstrom 2002; Doll et al. 2004). Cigarette smoking remains the leading cause of preventable death in the United States, accounting for approximately 443,000 deaths, or about 1 of every 5 deaths, in the United States yearly. According to the Secretary for Health and Human Services, cigarette smoking costs our nation $96 billion in direct medical expenses and $97 billion in lost productivity annually. That is nearly one trillion dollars each every year!

Despite the well-known health risks of smoking, tobacco use in this country (and around the world) is a pediatric epidemic. Although youth and adult smoking rates had dropped for years, that rate has now stalled. Unfortunately, most of the young people who begin smoking never consider the long-term health consequences associated with tobacco. Each day in the United States, over 3,800 youth under the age of 18 smoke their first cigarette. Each day in the United States, over 1,000 youth under the age of 18 become daily cigarette smokers. The majority of smokers who begin daily smoking as a teen are addicted to nicotine in cigarettes by young adulthood. The report also states that of every 3 young smokers, only one will quit, and one of those remaining smokers will die from tobacco-related causes.

The statistics contained in this Report seem staggering for 2012. Among U.S. high school seniors, one out of every four is a regular cigarette smoker (Youth Risk Behavior Survey [YRBS] 2009); in addition to cigarettes, nearly one in five White adolescent males (12-17 years of age) uses smokeless tobacco, e.g. snuff (YRBS 2009) and one in 10 young adults (18-25 years of age) smokes cigars (National Survey on Drug Use and Health [NSDUH] 2010). Importantly, cigar smoking is on the increase among Black females; over half of White and Hispanic high school males who use tobacco use more than one product, and just under half of Hispanic females who use tobacco use more than one tobacco product (YRBS 2009).

Why is this Report so important? Nearly all tobacco use begins in childhood and adolescence – 88% of adult cigarette smokers who smoke daily report that they started smoking by the age of 18 and 99% if first use is by age 26. (NSDUH 2010). Therefore, education and prevention efforts must be focused toward the time in their lives when they are most vulnerable to social influences (such as peer pressure and marketing). It is more important than ever to talk to our children about the dangers of tobacco and smoking, as well as the addictiveness of nicotine and to support interventions at the community, state and federal levels. The early use of tobacco has substantial health risks that begin almost immediately in adolescence and young adulthood, including impairment to the respiratory (lung) and cardiovascular (heart) systems. Tobacco use is highly addictive for young people, and even for young users, quitting is very difficult (Chassin et al. 2000; Mahew et al. 2000; Riggs et al. 2007).

What so many people do not realize is that even today, in 2012, tobacco products are among the most heavily marketed consumer goods in the U.S. The tobacco industry spends nearly $10 billion per year to market its products; one-half of all movies for children under 13 contain scenes of tobacco use and images and messages normalize tobacco use in magazines, on the internet, and at retail stores frequented by youth. Adolescents and young adults are uniquely susceptible to social and environmental influences to use tobacco, and images and messages, both in the media and from peers, that portray tobacco use as a desirable activity encourage young people to smoke.

Some of the major conclusions of this Report are as follows:

1) Research now documents strong causal associations between active cigarette smoking in young people and addiction to nicotine, reduced lung function, reduced lung growth, asthma, and early abdominal aortic atherosclerosis. (USDHHS 2004; McGill et al. 2000; McMahan et al. 2005, 2006).

2) Socioeconomic factors and educational attainment influence the development of youth smoking behavior. The adolescents most likely to begin to use tobacco and progress to regular use are those who have lower academic achievement. (Dewey, 1999; Sutherland and Shepherd 2001; Diego et al. 2003; Scal et al. 2003; Cox et al. 2007; Forrester et al. 2007; Tucker et al. 2008).

3) There is a causal relationship between peer group influences and the initiation and maintenance of smoking behaviors during adolescence; i.e. young people are more likely to use tobacco if their peers use tobacco or are anti-social. (Landrine et al. 1994; Hu et al. 1995; Haeden et al. 1991; Killen et al. 1997; Urbert et al. 1997; Flay et al. 1998; Robinson et al. 2006).

4) Evidence consistently points to the intentional marketing of tobacco products to youth as being a cause of young people’s tobacco use. While the tobacco companies themselves have launched anti-smoking efforts that have had a positive impact on public perceptions toward the tobacco industry among youth and young adults, they have not demonstrated success in impacting young people’s tobacco use. (Interactive Inc. 2000; 2001; Mandel et al. 2006).

5) There is a causal relationship between depictions of smoking in the movies and the initiation of smoking among young people.

A Vision for Ending the Tobacco Epidemic

The report concludes with a chapter detailing what has been done in the past to reduce tobacco use and what still remains to be done. It has been demonstrated that increasing tobacco prices is effective at lowering smoking prevalence and consumption levels for youth and young adults and that school based programs can produce at least short-term effects and reduce the prevalence of tobacco use among school-aged youth. Finally, there is sufficient evidence to conclude that mass media campaigns, comprehensive community programs and comprehensive statewide tobacco control programs can prevent the initiation of tobacco use and reduce its prevalence among youth.

Therefore, while much has been done, the efforts to end the tobacco epidemic must be reinvigorated:

“Providing and sustaining sufficient funding for comprehensive community programs, statewide tobacco control programs, school-based policies and programs, and mass media campaigns must be a priority. Taxing tobacco products is especially effective in reducing their use among young people. Greater consideration of further restrictions on advertising and promotional activities as well as efforts to decrease depictions of smoking in the movies is warranted, given the gravity of the epidemic and the need to protect young people now and in the future.”

___________________________

To learn more, or to download copies of the complete Report or the Executive Summary, go to:

http://www.cdc.gov/tobacco

There is also a Consumer Booklet at the website listed above, entitled, “Preventing Tobacco Use Among Youth and Young Adults: We CAN Make the Next Generation Tobacco-Free.”

Tags: Preventing Tobacco Use, Smoking Dangers, Youth Smoking
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Allstate’s Lowball Settlement Offer Backfires Big Time

November 16th, 2011

Guillaume Van Niekerk, a hardworking hotel maintenance, was injured in a crash when he was rear ended by a driver insured by Allstate.

He was treated and released from the scene by paramedics and subsequently went to the emergency room with his wife where he was treated for neck and back pain and released.

Over the next several days, Mr. Van Niekerk developed ankle pain and headaches, which have continued unabated. He was diagnosed with a sinus tarsi syndrome in the left ankle, and was advised that he should have surgery to correct that condition. He was also diagnosed with post traumatic headaches.

Allstate, the defendant driver’s liability carrier, originally only offered $11,000 of the $250,000 coverage prior to litigation. On the eve of trial, they continued to underestimate the value of Mr. Van Niekerk’s injuries and offered only $34,520 in compensation to settle his claims.

Unfortunately for Allstate, the jury found in Mr. Niekerk’s favor, and Allstate is now required to pay a verdict of $632,222.77, plus Plaintiff’s attorney’s fees and costs. The Plaintiff’s attorneys who brought Allstate to trial estimate that the final amount due from Allstate will exceed eight hundred thousand dollars.

This case is a very real example of the truth about insurance companies: they are interested in paying the minimum amount possible, no matter what the situation.

It also points out another very important factor: lawyers who are not afraid to take insurance companies to court get significantly higher settlements – even in cases that are settled prior to a trial.

If you are injured in an accident, please always make sure your personal injury attorney is Board Certified in Civil Trial Law or Workers Compensation Law. That means he or she is uniquely qualified to handle recalcitrant insurance companies in a court room. Examine his or her win/loss record in court – and if the lawyer rarely goes to court, find yourself someone who does.

Avera & Smith, LLP has an outstanding record of courtroom wins and settlements. Please take a look at our Awards & Verdicts section on our website, www.avera.com to see some of our successful cases. We offer Board Certified attorneys in a firm with more than 50 years of experience representing Plaintiffs.

If you, or someone you know, has been injured in an accident, we encourage you to contact Avera & Smith Immediately at 352-372-9999 or 800-654-4659, or simply fill out the contact form on the right side of this page.

We will help you get what you deserve.

Posted in car accident attorney, personal injury | No Comments »