LETTER OF THE LAW

============== 1996 - 2000 ==============

The information contained in this Newsletter is a general summary of the law in effect in Massachusetts at the time it was written. It is not a substitute for competent legal advice from a lawyer who has had the opportunity to review your own personal situation. Under the rules of the Massachusetts Supreme Judicial Court governing the conduct of lawyers, this may constitute advertising matter. Nothing in this Newsletter is intended to imply specialization in topic areas discussed here.


WHEN SHOULD YOU HAVE A WILL OR AN ESTATE PLAN?

(October 1996)

A will is a written document created with certain specific legal formalities which generally directs where you would like your property to go after you die. It isn't failsafe by any means, but it holds great sway.

In Massachusetts, almost everyone ought to have a will. If you were to die a resident of Massachusetts without a will, the Massachusetts General Laws dictate where your estate assets should go, and if it isn't very much, it will become the property of your natural heirs: your wife and children if you have any, or else your parents or siblings or others further removed. The proportion to each are specified in the General Laws and for most cases and for small estates, the choices are reasonable; if you die in Massachusetts with less than $15,000 to your name, you may be satisfied with what the law specifies.

An estate plan usually includes a will and is useful for many purposes.

(See description of estate contents in the questionaire below.)

Besides those that don't have much of an estate, there is another class of people who may not have need or use for a will: some people just don't care! ("What do I care, when I'm dead?") However, most people, and especially those with children, usually do care very much, even if only to keep the family peace after they die.

There are many situations in which having a will is virtually a necessity. The questionnaire below seeks out factors which trigger the need for a will or other estate planning vehicle(s). If you answer YES to any of these questions, it will behoove you to contact a lawyer, and if you live in Massachusetts or near St. Louis, Missouri, then you may contact me! If you live elsewhere in the United States, you may contact me for help with finding a lawyer that you can use.

BASIC WILL / ESTATE PLANNING QUESTIONNAIRE

ESTATE PROPERTY

Do you have a family home that is mortgaged but without PMI (Principle Mortgage Insurance)?

By the time you die, will you have an estate worth over $15,000? (Include in your 'estate' the death benefit of any life insurance you have, all stock, bonds, bank accounts, real estate, and retirement funds. Don't forget any expected inheritances you may receive between now and when you die.)

If you are married, will you and your spouse together, by the time one of you dies, have an estate worth over $500,000? (This requires special estate planning of a different sort, assuming you wish to prevent the government from collecting large portions of your estate as death taxes.)

Is you spouse independently financially solvent?

Do you have property owned in joint name?

Do you own any farm land?

Do you own a portion of a small business, i.e., a partnership interest or a share of a small closely held business?

Are you the beneficiary of any trusts set up by someone other than yourself?

Do you have any property (land!) situated out of state? Do you have a part-time residence out of state? Have you lived out of state at all in the last 3 years? Do you plan to move to another state before you die?

Do you own any patent or trademark rights?

Is either you or your spouse a foreigner -- not a U.S. citizen -- living in these United States?

Do you have any unusual exposure to liability, e.g., medical or legal malpractice or a forthcoming lawsuit which you stand to lose?

Do you own any significant low-basis property (bought or received at a value much lower than the current value) ?

FAMILY SITUATIONS

Have you or has your spouse ever been married before?

Are you currently divorced or separated anticipating divorce?

Do you have any minor children, under 21 years old or under 25 and still in school?

Are any of your children adopted? Are any grandchildren adopted?

Do you have any step-children from such prior marriages?

Do you have any children who have or will have died before you do but who have left you grandchildren?

Would you like to provide something for your grandchildren directly?

Are any of your children divorced?

Do you have any children with special financial needs, e.g., with a disability of some sort?

Is there anyone who you'd like to leave money for but who lacks the ability to save money or to invest it wisely?

Are you involved in a same-sex relationship instead of a heterosexual marriage?

Do you have a lover, employee, or anyone else outside your immediate family that you wish to provide for?

Are any of your children ones that you might wish to disown entirely, disinherit, or simply give less to than their siblings? (For example, sometimes an older child may have already received a lot of support, e.g., a medical school education!)

Do you have charitable inclinations? (Is there a charitable organization you would like to leave a gift to when you die?)

Copyright 1996 by Stuart J. Williams

(Note: Stuart J. Williams passed away in January 2001. He was a good lawyer and a good friend. AJR)


SHOULD YOU SETTLE YOUR LAWSUIT?

(April 1996)

"Jerusalem was destroyed because justice was perverted...people insisted upon the fulfillment of the exact law and never sought compromise."
-- Talmud (Baba Batra 30b)

Very few of the lawsuits brought ever go to trial. Most settle. We recently saw the following posted in the Stoughton District Court:

ADVANTAGES OF SETTLEMENT

  1. A settlement is certain. It will not be taken away by a judge.
  2. A settlement is now. There is no long wait for uncertain results.
  3. A settlement saves money. The cost of trial and possible appeals are eliminated.
  4. A settlement avoids pain. No one looks forward to having their personal and professional life dissected in front of strangers.
  5. . A settlement preserves dignity. The settling parties have decided their own fate. No outside force has dictated to them.

Copyright 1996 A. Joseph Ross, J.D.


NEW LAW REQUIRES YOUR SMALL BUSINESS TO HAVE A SEXUAL HARASSMENT POLICY

(April 1996)

Do you own a small business in Massachusetts? Does it have six or more employees? Chapter 278 of the Acts of 1996, recently signed by Governor William F. Weld, requires you to have a specific policy on sexual harassment. If you have 15 or more employees, you must have a sexual harassment policy in place by 6 November. If you have between 6 and 14 employees, you have until 1 January 1997.

By law, your company's sexual harassment policy must include the following:

Under the new law, you must provide employees with a written copy of the policy -- new employees when they begin their employment and all employees annually. The law encourages, but does not require, you to provide your employees training about sexual harassment. Needless to say, if you don't provide this training, you can be sure that this will be used against you in the trial of a harassment complaint.

If you already have a sexual harassment policy in place, you should have your attorney review the policy to see that it complies with the specific requirements of the new law. The new law requires the Massachusetts Commission Against Discrimination to prepare and provide a model policy and a poster which employers may use.

Copyright 1996 A. Joseph Ross, J.D.


BUYING FORECLOSED PROPERTY?

(April 1996)

As people try to find affordable housing, one option is to try to purchase property that has been foreclosed upon. It is true that properties can be bought for less in foreclosure sales. It is also true that there are many pitfalls waiting the unaware buyer.

In the ordinary real estate transaction, you can make an offer which is subject to an inspection of the property, a search for financing, and a title examination. The usual purchase and sales agreement allows you to back out of the deal and get your deposit back if an inspection discloses problems, if you can't get a mortgage, or if the title examination shows problems with the title. But in a foreclosure sale, you usually have to research the property before you become the winning bidder at the foreclosure auction. This means spending money that may turn out to be wasted if you don't win the property at the auction.

In a foreclosure sale, you must check the title in advance of the auction and determine what you are buying. The foreclosure sale is designed to reimburse the lender for a bad loan, and it discharges the lender's lien. But an owner who loses property through a foreclosure may also owe taxes and have other liens against the property. The property is worth that much less to you if you have to pay these things off in order to obtain clear title. A realtor may be willing, for a fee, to help you determine the value of the property in which you are interested, so that you can determine how much you want to bid at the sale.

Buying a foreclosed property may result in saving money. It also is a lot of work and must be approached carefully.

Copyright 1996 A. Joseph Ross, J.D.


SOME RECENT DECISIONS

(April 1996)

The Iowa Court of Appeals, by a 3-3 split, let stand a lower court decision that a woman who was paralyzed when she dove into a four-foot above ground swimming pool cannot recover damages against the manufacturer or the owner because the danger was "open and obvious." The lower court held that the danger was "obvious" as a matter of law despite expert testimony that most swimmers don't know they can be paralyzed from diving into shallow water.

The New Hampshire Supreme Court has ruled that an underage college student who got drunk and injured himself can sue a friend who bought the liquor for him the day before.

The Ohio Supreme Court has held that a company which doesn't have enough employees to be subject to suit for sexual harassment under federal or state law can still be sued for "wrongful discharge in violation of public policy." A veterinarian's assistant complained that the doctor grabbed and pinched her, constantly talked about sex, and repeatedly asked about her sex life with her husband. Because the veterinarian had fewer than four employees, she could not sue under federal or state anti-discrimination laws. The Court said that it "cannot find it to be Ohio's public policy that an employer with three employees may condition their employment upon the performance of sexual favors while an employer with four employees may not."

Much has been made of the famous case in which a jury awarded $2.9 million to a woman who spilled hot McDonald's coffee on her lap while in her car. Many of the people who scoffed at the case had not heard that McDonald's coffee is served at 190 degrees Fahrenheit, too hot to drink and that the plaintiff suffered second and third degree burns over her entire genital area.

But even fewer people have heard that the judgment, which included about $2.4 million in punitive damages, was later reduced by the judge to a total of about $800,000.

Another case that has achieved some notoriety is one about a Philadelphia woman who sued a local hospital claiming that a CAT-scan had robbed her of her psychic powers. Again, few people have heard that the $800,000 verdict in her favor was reversed on appeal.

Copyright 1996 A. Joseph Ross, J.D.


ARE YOU LIVING TOGETHER WITH YOUR SIGNIFICANT OTHER?

(January 2000)

If you and your "significant other" are living together and are not married, have you considered what will happen if one of you should die? Are there children whose care should be provided for? Do you jointly own property? How will the property be distributed if you ever decide to separate?

These are just some of the questions which are answered automatically by a marriage contract. If you are not married and are living with that special person, whether of the same or opposite sex, you need to consider how to provide for a number of legal issues.

If you are married, your spouse and children automatically get your property if you haven't made a will. You can provide for your significant other in your will, but if you are not married, and you don't have a will, your property will go to your legal heirs -- parents, siblings, children, or other relatives -- and your Significant Other will get nothing.

If you have children, you and the children's other parent are their natural guardians. If you die, the other parent will most likely get custody of the children. If you want your significant other to care for your children should you die or become incapacitated, you need to take legal steps to make that happen. One possibility is to provide for guardianship in your will. Another is for your significant other to adopt the children with you.

You need to consider how to deal with the home in which you live. Do you own it jointly? Does one of you own it? Do you rent? If you and your significant other own a home as "joint tenants" and one of you dies, the home will automatically pass to the other. If one of you owns the home, the other may not have the right to stay there after the death of the homeowner. The same may be true if the name of just one of you is on the lease.

Do you, or does your significant other, have a pension plan? Do you expect that one of you will get benefits from the pension plan on the death of the other? What about health insurance?

What happens if you decide to end the relationship? How will you divide up property? Who will have custody of children?

These are only some of the issues that you need to discuss with competent counsel if you are living together without marriage.

An agreement between unmarried cohabitants needs to be carefully drafted. The Supreme Judicial Court of Massachusetts has held that a contract founded "explicitly and inseparably" on sexual relationships is void. The agreement should not spell out such personal matters. Instead, it should contain language indicating that it is for the common welfare of both parties, to define their economic partnership.

For such a contract to be valid, it is important that it reflect full disclosure of each party's property and assets. Each of you should be represented by separate counsel. One lawyer cannot represent both of you in this transaction. It is a conflict of interests.

It is important that each party prepare an estate plan, and that the estate plan documents refer to the agreement. All documents must be reviewed carefully, to make sure that the documents do not contain conflicting provisions.

Some practitioners believe that the execution of the contract should be videotaped. Otherwise, one party could try to void the agreement later by claiming that they were mentally incompetent or under some compulsion by the other.

In Massachusetts, there is no such thing as "common-law" marriage, and the courts have also rejected the concept of "palimony." If you want to have the legal protections which married couples have, and you cannot or choose not to get married, you need to prepare a contract and other legal documents to define your relationship.

Copyright 2000 A. Joseph Ross, J.D.


DOES YOUR COMPANY HAVE AN INTERNET USE POLICY?

(January 2000)

These are two sides of a growing concern: How far can an employee go in using the company's Internet connections?

A growing number of companies are adopting an explicit policy on use of the company's Internet connections. A good Internet policy generally informs employees clearly the extent to which use of the company's facilities is permissible and makes clear the extent to which employees can be disciplined or discharged for violations.

A company is generally considered to be entitled to define the terms of use of its own facilities and to reserve to itself the right to read employees' e-mail. But what if an employee is using her own e-mail on the company's time? In that case, the company probably does not have a right to read the employee's e-mail, but it may have the right to discipline the worker for loafing on company time.

Companies facing issues of sexual harassment in the workplace often want to restrict workers' access to sexually-explicit Web sites and newsgroups, and even restrict sexual content in e-mail. Some companies have even begun to install filtering software to prevent such uses. Sexual harassment complaints based on sexually-explicit e-mail is growing.

When an Internet policy is adopted, a company should take care to enforce the policy uniformly. That doesn't necessarily mean disciplining every employee for every casual use of the company's e-mail. But selective enforcement of an Internet policy can give rise to discrimination claims.

Whatever the policy a company chooses to adopt, the most important thing is that there be a clear, written policy. The policy must be reasonable and must be enforced uniformly.

Copyright 2000 A. Joseph Ross, J.D.


DO YOU KNOW HOW TO PROTECT YOURSELF FROM TELEMARKETING FRAUD?

(January 2000)

The phone calls are annoying enough, but some telemarketer perpetrate an outright fraud. In the most common type of telemarketing fraud, the telemarketer will say that you've won a prize, but you must sent money first. They will insist that you must act right away, and even urge you to wire the money. Or, they may try to come by your home to pick up a payment. Or, they may claim to be a law enforcement officer and offer to help you for a fee. These are all indications of fraud.

To protect yourself, check all unsolicited offers with the local Better Business Bureau or with the Consumer Protection Division of the state Attorney General's Office. Never give out your credit card, checking account, or social security number to an unknown caller. And remember, if it sounds too good to be true, it probably is.

Copyright 2000 A. Joseph Ross, J.D.


AND A BUSINESS FRAUD

(January 2000)

We caught this scam over ten years ago in our office, but it's still out there. Someone will call your office, claiming to represent an office supply company, and ask to verify the serial number of your printer or copier. Using that information, they will offer to sell you supplies for that equipment. In some versions of the scam, they will try to ship something you didn't order and claim that you must have ordered it, since they have the serial number of your machine.

If you actually got useable office supplies at a reasonable price, it wouldn't be so bad. But the products often don't work with your equipment. And worse, they bill you two or three times the normal price and add inflated shipping and handling charges. Small businesses are the major victims of this scam. To protect yourself, make sure that everyone in your company who may answer the phone is aware of the office's supply-purchasing policies and warned to recognize this scam.

And, while you're warning people of this scam, you may wish to warn them of another. Sometimes, someone may try to charge a long- distance call to your office phone. We've had this happen on occasion. The phone company calls and asks for authorization for the call. If someone answering the phone actually thinks it's you, they may authorize a call to some distant country. Make sure that every one who answers your phone knows how to spot this scam.

Copyright 2000 A. Joseph Ross, J.D.

WHY WE CAN'T GIVE LEGAL ADVICE BY E-MAIL

(January 2000)

Legal advice is a very individualized thing. You may think you have a simple question, but the answer often depends on additional information that we don't have. In order to give a proper answer to your question, we may have to ask a few questions ourselves. Sometimes, when a regular client asks us a question by e-mail about an on-going matter, we may feel comfortable responding by e-mail. But under all other circumstances, we really have to talk with you by phone before we can answer your questions.

Sometimes, we can't even give telephone advice. The answer to your question may depend on a careful reading of a lease, a will, or some other document. In that case, we have to make an appointment for you to come in. so that we can read the documents.

Copyright 2000 A. Joseph Ross, J.D.

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