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  • Choosing between a Living Trust or Will

    Estate Planning, the task of preparing for the future of your family once you are no longer around. It can be a daunting task as no one wants to think about what will happen after they pass. However it is extremely important to ensuring your family is provided for during that time. Estate planning can include writing a will as well as establishing a living trust. All of us here at Oliver and Cheek are ready to help you decide which estate planning tool meets the needs of you and your family.

    A will is an end of life document that designates how property and assets will be distributed at the time of your death. The benefit is that a will can be amended, updated, and rewritten at any point during your lifetime. It will also allow you to provide a guardian to your children if need be. The downfall of this document is that it must go through a probate court and be settled by an executor. This can be a lengthy and expensive step depending on the intricacies of your document. Proper planning at the beginning will save your loved ones from a long probate process in the future.

    If the potential of a probate court process is not something you or your family are interested in, thinking about planning your estate with a Trust may be the better option. A trust still allows you to still transfer property and assets to your loved ones after death, yet it avoids probate court or the need for an executor of a will. It can still be amended throughout your lifetime, and when the time comes a named trustee will ensure that property and assets are divided as stated.

    Regardless of which you choose both are great options for planning your estate during your lifetime as well as taking care of your loved ones after you’re gone. To learn more about which tool may be right for you call us at Oliver and Cheek to schedule an appointment.

    For more information or to schedule a consultation, please contact Oliver & Cheek, PLLC by calling (252) 633-1930 or visiting www.olivercheek.com.

     

    (sources: Investopedia, Legal Zoom)
    Estate planning, Will, Living trust, Family Law, Estate Law, Law firm of Oliver and Cheek, Oliver and Cheek Attorneys, New Bern NC
  • Why Different Corporate Structures Matter

    When starting a business or considering reorganization one of the biggest questions to ask is: What Corporate Structure is right for me? Knowing the difference between the ways your business can be structured is integral in making that decision. In many cases this comes down to understanding how each structure is taxed by the government. Two popular choices are either to organize as a Limited Liability Company (LLC) or as a Corporation, but what’s the difference?

     

    Organizing as a Corporation

    Within a Corporation the most common forms of organization are either a S corporation or a C corporation. What these versions have in common is that a corporation is autonomous from the owners. As in it can act on its own in buying or selling property, legal matters such as suing or being sued as well as ownership can change by buying or selling stocks.

    S Corporations are better for those who offer a public service as it offers the same protection and structure of a corporation yet has the same tax benefits as a LLC. The business pays no tax on the corporate level, however individuals and owners pay taxes on profits.

    C Corporations are taxed directly by the government as well as owners pay taxes on profits made. Owners of the C corp still receive limited liability protection that protects personal assets separate from the business. A benefit of organizing as a C corp is that payroll and benefits among other things can be deducted from taxes.

    Organizing as a LLC

    Unlike a corporation, LLC’s don’t offer shares in their business. If an LLC has multiple owners they all share a percentage of the business. They also have the benefit of being flexible in how they are taxed while offering the most levels of protection between business and private assets. The LLC is either taxed through the individual profits that the owner or owners make, or as either a S or C corporation.

    In the end it comes down to what makes the most sense for your business. With any   of the models you choose comes a variety of pros and cons. We here at Oliver & Cheek understand how to help you make the right choice and minimize the cons.

    At Oliver & Cheek business law is one of our specialties and we are here to help you through all of your business needs, organization and beyond. For more information or to schedule a consultation, please contact Oliver & Cheek, PLLC by calling (252) 633-1930 or visiting www.olivercheek.com.

     

     

    (Sources: Corporate Direct, Business News Daily)

    business structures, LLC, Corporation, Oliver and Cheek Attorneys, New Bern NC,
  • Elder Abuse: Know the Signs and Speak Up


    The National Council on Aging found that one in 10 Americans age 60 or older has experienced some form of abuse; and some estimates show that as many as 5 million seniors are abused each year.

    Late last year, members of Congress came together in bipartisan agreement to pass a law supported by the American Bar Association (ABA) that would enhance the federal government’s response to elder abuse and financial exploitation of seniors.

    Signed by President Donald Trump, the Elder Abuse Prevention and Prosecution Act of 2017 was passed by voice vote in the House and Senate. Both bodies were informed of alarming statistics on elder fraud and abuse—this prompted overwhelming support for the legislation.

    Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) commented, “Exploiting and defrauding seniors is cowardly, and these crimes should be addressed as the reprehensible acts they are.” He sponsored the legislation with Sen. Richard Blumenthal (D-Conn) and 14 other co-sponsors.

    This legislation “sends a clear signal from Congress that combating elder abuse and exploitation should be a top priority for law enforcement,” Grassley added.

    What is Elder Abuse?

    Elder abuse takes many forms: Physical abuse, neglect, financial exploitation, sexual abuse, and emotional or psychological abuse. Research estimates that only one in 14 cases of abuse is reported to authorities. Despite the underreporting of cases, the National Council on Aging found that one in 10 Americans age 60 or older has experienced some form of abuse; and some estimates show that as many as 5 million seniors are abused each year.

    “Elder abuse…is a problem that respects no boundaries,” Thomas M. Susman, director of the ABA Governmental Affairs Office, told Congress. “It’s not defined by socio-economic, racial, or ethnic status, and it occurs with alarming frequency in your states as well as all others.”

    What is Elder Law?

    Elder law is a relatively new concept due to the extended life spans of many Americans. This branch of law serves the needs of the elderly and their families. Why is it so important? Research shows the country’s fastest-growing demographic segment is people 85 and older, and the U.S. Census Bureau predicts people 65 and older will make up approximately 20% of the population by 2030.

    Quite an impressive range of issues are covered by elder law, both legal and financial, and include: Conservatorships, power of attorney, abuse, guardianship, probate and estate administration, estate planning, and end-of-life care.

    North Carolina law protects disabled adults of any age from abuse, neglect, and exploitation. The law states that “any person having reasonable cause to believe that a disabled adult is in need of protective services shall report such information.” Definitions are:

    Abuse: Willful infliction of physical pain, injury, or mental anguish, unreasonable confinement, or the willful deprivation by a caretaker of services necessary to maintain mental and physical health.

    Neglect: A disabled adult who is either living alone and not able to provide for himself the services necessary to maintain his mental or physical health or is not receiving services from his caretaker.

    Exploitation: Illegal or improper use of a disabled adult or his resources for another’s profit or advantage.

    North Carolina law now offers extra protections to combat financial exploitation of adults 65 and older and disabled adults. Under the law, customers of financial institutions can submit a list of people to contact if the institution suspects the customer is a victim or target of financial exploitation. The institution is also required to report any suspected exploitation to local law enforcement. If the suspected victim is a disabled adult, the financial institution is required to report to the contact list, local law enforcement, and the county Department of Social Services.

    Warning Signs of Elder Abuse

    Authors Lawrence Robinson, Joanna Saisan, MSW, and Jeanne Segal, Ph.D. recently provided Helpguide.org an amazing amount of information concerning this topic. They say signs of elder abuse can be difficult to recognize or mistaken for symptoms of dementia or the elderly person’s frailty—or caregivers may explain them to you that way. In fact, many of the signs and symptoms of elder abuse do overlap with symptoms of mental deterioration, but that doesn’t mean you should dismiss them on the caregiver’s say-so.

    Frequent arguments or tension between the caregiver and the elderly person or changes in the personality or behavior in the elder can be broad signals of elder abuse. If you suspect abuse, but aren’t sure, you can look for clusters of the following warning signs.

    Physical abuse warning signs:

    • Unexplained signs of injury, such as bruises, welts, or scars, especially if they appear symmetrically on two sides of the body.
    • Broken bones, sprains, or dislocations.
    • Report of drug overdose or apparent failure to take medication regularly (a prescription has more remaining than it should).
    • Broken eyeglasses or frames.
    • Signs of being restrained, such as rope marks on wrists.
    • Caregiver’s refusal to allow you to see the elder alone.

     

    Emotional abuse warning signs:

    • Threatening, belittling, or controlling caregiver behavior.
    • Behavior from the elder that mimics dementia, such as rocking, sucking, or mumbling to themselves.

     

    Elder neglect or self-neglect warning signs:

    • Unusual weight loss, malnutrition, dehydration.
    • Untreated physical problems, such as bed sores.
    • Unsanitary living conditions: Dirt, bugs, soiled bedding, and clothes.
    • Being left dirty or unbathed.
    • Unsuitable clothing or covering for the weather.
    • Unsafe living conditions (no heat or running water; faulty electrical wiring or other fire hazards).
    • Desertion of the elder at a public place.

     

    Financial exploitation warning signs:

    • Significant withdrawals from the elder’s accounts.
    • Sudden changes in the elder’s financial condition.
    • Items or cash missing from the senior’s household.
    • Suspicious changes in wills, power of attorney, titles, and policies.
    • Addition of names to the senior’s signature card.
    • Financial activity the senior couldn’t have done, such as an ATM withdrawal when the account holder is bedridden.
    • Unnecessary services, goods, or subscriptions.

    (more…)

    Elder Abuse, Know the signs, Elder Law, Family law, Estate Law, Law Firm of Oliver and Cheek, Oliver and Cheek attorneys, New Bern NC
  • Update Your Will Before You File for Divorce

    The process of a divorce is one of the most difficult experiences one can face in life. The emotional and financial turmoil of a divorce can take quite a toll on so many aspects of daily life that many neglect to think about possible future complications.

    You may be dealing with child custody issues, questions about alimony, division of property—all extremely important factors to settle during a divorce. But, don’t forget to address something that could seriously affect your family: Your will. If you don’t update this document before your divorce, at your death, your assets could be distributed in ways you neither expect or want—including to your ex-spouse.

    The three big reasons to update your will before divorce are:

    • To avoid your soon-to-be-ex inheriting your assets;
    • To appoint someone to be in charge of things if you’re incapacitated (power of attorney) and ensure your dying wishes are taken care of (an executor); and
    • To make things easier for your heirs.

    Like it or not, death is part of life, so we should all be able to talk about it and prepare for it. You’ll want to have everything in order—especially during a volatile time such as divorce. With just one or two appointments with an attorney, you’ll plan out your wishes and instructions and feel much better about the future. In fact, dealing with your will be relatively painless.

    Decisions, Decisions

    Your attorney will have specific questions for you, so it might be best to decide a few things before your first appointment. Probably the biggest question to address is who will be your executor? This person will be responsible for taking care of assets and make sure your wishes are carried out after your death.

    Your soon-to-be-ex spouse is more than likely your current executor, but that obviously needs to change. A sibling is a good choice if you have one, if you don’t, perhaps a best friend. If they’re in good health, an aunt or an uncle might be a good fit. The one rule here is that it should be someone you absolutely trust.

    The next big decision is who will receive your money and other assets. If you have children, they will automatically inherit these items. If your children are under 21 years of age, you might want to determine at what age they should take possession of those assets. Also decide whether or not they should receive everything all at once or if you’d like to see them given installments for several years.

    Lastly, the issue of life support should be addressed. Do you want to remain on life support if something awful happens or would you rather be disconnected? These wishes should be made very clear in your will as the person given power of attorney will carry out these wishes or make other health decisions on your behalf when needed. Your power of attorney could be the same as your executor, but it doesn’t have to be.

    Be sure to also include details about the type of funeral service you’d like. Specifics can include your choice of cremation or burial, location of burial, funeral location, and the music played. Making such decisions now will save your family a lot of worry and guesswork.

    Taking Care of Those You Love

    The main takeaway here is that you don’t want the wrong people to benefit from your death. Divorce can put you on the path to this scenario, but if you plan accordingly, you can ensure the ones you love are well taken care of and get what is deserved.

    Take the time to meet with an estate planning attorney, in addition to a divorce attorney, before ultimately filing for divorce. It’s important for you to understand exactly how the divorce proceedings will affect you and/or your children, especially if you become incapacitated or pass away suddenly during the process.

    Death is a fact of life, so why not talk about it and prepare for it? You’ll want to have your “ducks in a row” especially during a volatile time such as divorce. There’s enough to worry about without adding this to the list. You’ll feel much better once it’s dealt with. Just one or two appointments with an experienced attorney should get the job done. Most dread thinking about a will, but the process is actually pretty painless and definitely worth the time.

    For more information or to schedule a consultation, please contact Oliver & Cheek, PLLC by calling (252) 633-1930 or visiting www.olivercheek.com.

    (Sources: North Carolina General Assembly; North Carolina Wills and Trusts; Forbes Magazine; Life After Divorce by Dr. Karen Finn; Huffington Post; and LGBT Family Law.)

    Will, Update your will, Divorce, Estate Planning, Estate updating, Family Law, Consumer Law, Attorneys of Oliver and Cheek, Law firm of Oliver and Cheek, New Bern NC
  • Do You Have a Wrongful Termination Case?

    Do You Have a Wrongful Termination Case?

    In the United States, employment relationships are presumed to be “at-will” in all states except Montana. Our country is one of only a handful where employment is predominantly at-will.  Most countries throughout the world allow employers to dismiss employees only for cause.   Some of the reasons given for our retention of the at-will presumption include respect for freedom of contract, employer deference, and the belief that both employers and employees favor an at-will employment relationship over job security.

    At-Will Defined

    At-will means that an employer can terminate an employee at any time for any reason—except an illegal one—or for no reason without incurring legal liability. Likewise, an employee is free to quit a job at any time for any or no reason with no adverse legal consequences.

    At-will also means that an employer can change the terms of the employment relationship with no notice and no consequences. For example, an employer can alter wages, terminate benefits, or reduce paid time off. In its unadulterated form, the U.S. at-will rule leaves employees vulnerable to arbitrary and sudden dismissal, a limited or on-call work schedule depending on the employer’s needs, and unannounced cuts in pay and benefits.

    North Carolina law generally presumes that you are employed at-will unless you can prove otherwise, usually through written documents relating to your employment or oral statements your employer has made. Normally you are at-will unless there is a contract for a specific period of time or you work for a governmental employer or in a union shop where just cause is required for termination.

    Were You Wrongfully Terminated?

    To be able to sue for wrongful termination, you’ll need to show your termination violated a specific law or terms of a contract, not just that it was unfair. If your employer fires you for discriminatory reasons, in violation of an employment contract, or in retaliation for exercising your rights, you may have a legal claim against your employer for wrongful termination.

    There are several ways you can bring a wrongful termination lawsuit in North Carolina:

    Discrimination (Federal)

    Discrimination is prohibited by federal laws including Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA). These protect classes of individuals from termination based on their membership in that class.

    Title VII covers discrimination based on race, color, religion, sex, and national origin. The ADA and ADEA cover disability-based and age-based discrimination, respectively. All complaints under any of these laws must be filed with the United States Equal Employment Opportunity Commission (EEOC) within 180 days of the discriminatory event.

    The Civil Rights Act of 1866 only covers race-based discrimination, but has the advantage of a four-year statute of limitations and no EEOC filing requirement. This is helpful if you miss your filing deadline with the EEOC on a racial discrimination case.

    Family Medical Leave Act (Federal)

    The Family Medical Leave Act (FMLA) covers private employers with 50 or more employees. To qualify, an employee must have worked for his or her employer for at least 12 months (although not consecutively) and must have worked 1,250 hours for that employer in the preceding 12 months.

    The FMLA grants employees up to 12 weeks in any 12-month period. This leave can be used for taking care of a serious health condition, family military leave, or expanding the employee’s family.

    If the employee is able to return to work before his or her FMLA time is exhausted, he or she must be returned to the same or a nearly identical position. If the company does not allow this and tells the employee that he or she cannot return, the employee may bring suit under the FMLA.

    North Carolina Retaliatory Employment Discrimination Act

    North Carolina’s Retaliatory Employment Discrimination Act (REDA) protects employees from retaliation when they participate in certain activities. The main activities covered are filing, participating in, or testifying in a worker’s compensation claim or a complaint relating to the state’s Occupational Safety and Health Act.

    REDA complaints are brought to the Department of Labor. The complaint must be filed within 180 days and will result in action by the Department or the issuance of a right to sue letter. This letter allows you to bring your case to court.

    North Carolina Public Policy Exception

    North Carolina recognizes a public policy exception to its at-will employment doctrine. No employer is allowed to fire an employee in violation of state public policy. Employers are not allowed to terminate their employees for complying with a legally-required duty such as jury duty giving truthful testimony in court. Several laws which have been recognized as expressing North Carolina public policy are the North Carolina Workers’ Compensation Act, the North Carolina Wage and Hour Act, and the North Carolina Constitution.

    The North Carolina Equal Employment Practices Act (EEPA) acts as a miniature Title VII, stating that it is against North Carolina public policy to discriminate based on “race, religion, color, national origin, age, sex, or handicap” if an employer has 15 or more employees. This is enforced by bringing a public policy claim with the EEPA as the public policy basis.

    What’s Not Considered Wrongful Termination?

    Unfortunately, at-will employment protects your boss’s right to fire you for any reason (or no reason at all) including that he’s simply in a bad mood, she doesn’t like you, or you made a one-time mistake. Unless your contract or the law specifically prohibits your boss from firing you for a specific reason, your termination is probably completely legal—no matter how unfair it may seem, no matter how long you’ve worked for them, and no matter how good you are at your job.

    If your employer’s not being discriminatory, she can handle your employment however she wants. That may be bad business, but it’s not illegal. The following examples are completely legal:

    • Asking you to work overtime or weekend hours.
    • Making unreasonable demands or requiring you to complete projects you don’t have sufficient time to complete.
    • Requiring you to complete tasks you dislike.
    • Denying a promotion when the reason for the denial is not discriminatory.
    • Being difficult to work with; such behavior is only illegal when it rises to the level of harassment or becomes so threatening that it’s covered under other laws, such as laws against assault or stalking.

    It’s important to remember that, in many instances, a wrongfully terminated employee can recover lost wages, other incidental related monetary damages, attorney’s fees, and costs of court. Of course, not outcome is guaranteed, so working closely and cooperatively with your attorney is crucial.

    If you’re not sure if you’ve been the victim of an unlawful dismissal, it’s time to talk to an attorney who specializes in employment law. Whether you want to get your job back, negotiate a settlement, or file a lawsuit, Oliver & Cheek, PLLC can help you assert your legal rights. For more information, call (252) 633-1930 or visit www.olivercheek.com.

    (Sources: North Carolina Bar Association; North Carolina State Human Resources; North Carolina Justice Center; North Carolina Department of Labor; National Conference of State Legislatures; United States Department of Labor, and Craig Patrick Hensel.)

    wrongful termination, business law, hiring, human resources, law firm of oliver and cheek, new bern NC

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