Should You Set Up a Trust?

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Set Up a Trust

If you’ve started to plan for the orderly distribution of your estate in the event of your death, you’ve probably wondered about whether or not a trust is right for you. This blog helps you understand what a trust is, why it can benefit you, and its advantages and disadvantages.

To understand the benefits of a trust, you need to have a basic understanding of the probate process. The probate process seeks to ensure the orderly distribution of property that you own upon your death. There are two primary ways that you can have the use of property, but not own it at the time of your death—through re-titling assets and through a trust. If you change the legal title to property, such that you own it jointly with anyone else, the property automatically passes to the joint owners at the instant of your death, and any property interest you had is extinguished.

A trust works a little differently. In essence, a trust is a separate legal entity, into which you can transfer property. When you transfer property into a trust, you relinquish ownership of the property, but have use and enjoyment of it as set forth in the terms of the trust. Typically, you’ll have what is known as an “inter vivos” trust, one that becomes effective while you are still living. Any property that you put in the trust during your lifetime stays in the trust when you die—accordingly, there’s no need to address the ownership or distribution of the property when you die, as you don’t own it.

The obvious advantage to putting property in trust is that you avoid the probate process, which can be expensive and time-consuming. As a general rule, you’ll pay a bit more up front for the preparation and execution of the trust, but it’s usually far less than the estate would pay if the property went through probate.

Contact Our Office

At Barnard, Mezzanotte, Pinnie, Seelaus & Kraft LLP, we have protected the rights of individuals throughout Delaware County since 1980. We offer a free initial consultation. To schedule an appointment, call us at 610-565-4055 or 302-594-4535 or contact us online.

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The Responsibilities of Property Owners in Pennsylvania

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Property Owners in PennsylvaniaIn Pennsylvania, as in other states, there’s a duty with respect to the maintenance and care of residential and commercial property. The duty is typically imposed on anyone who has the power or authority to control the conditions of the property—that could be the owner, a landlord, a tenant or a property manager. When there’s a breach of that duty, any lawsuit for injuries is typically filed under a legal theory of “premises liability.”

The Duty

The general duty owed is to reasonably monitor and maintain property so as to minimize the risk of injury to anyone legally on the property. Accordingly, the owner/tenant/landlord/property manager may not simply wait until a dangerous condition is discovered. The property must be reasonably monitored for potential problems. This doesn’t mean that there’s an absolute duty to prevent any accidents—only that there must be reasonable efforts to discover any potential problems.

Once a dangerous situation has been discovered, there’s duty to do one of the following:

  • Fix the problem so that it no longer poses a risk of injury
  • Prevent access to that part of the property that poses the danger
  • Reasonably warn visitors of the danger present

The Nature of the Visitor

The duty owed will vary, based on the nature of the visitor. There is no duty owed to anyone who is illegally or wrongfully on the property—a trespasser. The only exception is for man-made or artificial features on the property that may attract a child or minor.

If the visitor is an invitee—someone who is expressly or impliedly “invited” on to the property for the benefit of the property owner— the duty is the highest possible under the law. This includes a customer who enters commercial property to obtain goods or services.

If, however, the visitor is a licensee—someone legally on the property, but there for his or her own primary benefit—the duty is slightly less. With a respect to a licensee, a property owner is only responsible for any danger that either was or should have been reasonable discovered and which the visitor could not have reasonably discovered on his or her own.

Contact Our Office

At Barnard, Mezzanotte, Pinnie, Seelaus & Kraft LLP, we have provided thorough and effective legal counsel to clients throughout Delaware County in Pennsylvania since 1980. We offer a free initial consultation. To schedule an appointment, call us at 610-565-4055 or 302-594-4535 or contact us online.

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The Dangers of Elder Financial Abuse

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Though studies show that the rates at which elder Americans have been victims of financial abuse has dropped since 2010, seniors still remain vulnerable to fraudulent acts, from investment advisors, family and complete strangers. A report from the Investor Protection Trust found that 17% of individuals over the age of 65 admitted that they had been victims of some financial abuse.

In one of the most high-profile instances of senior financial abuse, prosecutors charged Michael Donnelly, former president of Coastal Investment Advisors, Inc., with bilking seniors and others out of more than $2 million. They say that he instructed clients to make checks payable to Donnelly Advisors Group, then cashed the checks and used them for his own personal expenses, including the private tuition for his children. He also fabricated investment reports, statements and trade documentation.

Donnelly settled the civil lawsuit related to the fraudulent behavior last fall, agreeing to pay $1.99 million in restitution. Earlier this year, he pled guilty to securities and wire fraud. A federal court in Philadelphia sentenced him to spend more than eight years in prison, to be followed by three years of supervised release.

Nearly 10 years ago, Anthony Marshall, the son of former New York socialite Brooke Astor, was convicted of stealing tens of millions of dollars from his elderly mother during her latter years. Marshall’s son, Philip, who testified against his father in a six-month criminal trial, said that his grandmother was only one of many seniors who are taken advantage of by children, financial advisors and others. Philip Marshall now travels the country speaking as an advocate for reforms that would provide better protection for seniors in financial affairs.

Contact Our Office

At Barnard, Mezzanotte, Pinnie, Seelaus & Kraft LLP, we have protected the rights of individuals throughout Delaware County since 1980. We offer a free initial consultation. To schedule an appointment, call us at 610-565-4055 or 302-594-4535 or contact us online

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Restrictive Covenants in Real Estate

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Covenants in Real Estate

In recent years, it’s become a practice for many real estate agreements to contain restrictive covenants—provisions that place limits on the future use of the property. Often, these limitations involve aesthetic matters, such as choice of color for the exterior of a home or the erection of a fence. If the covenant is included in the deed to the property, it may be enforceable against future buyer/owners as what is known as a “covenant running with the land.” Are all restrictive covenants enforceable? What legal prohibitions may be applied to restrictive covenants?

As a general rule, covenants related to real estate are enforceable unless they are what are known as “exclusionary” covenants, designed to prevent people from purchasing real estate because they belong to some protected class—women, minorities, the disabled, etc. Exclusionary covenants were common in the United States in the early 20th century, but were banned by the U.S. Supreme Court in 1949.

In order to be enforceable against subsequent owners of property, a restrictive real estate covenant must meet a number of tests:

  • The covenant must comply with the statute of frauds, which identifies what contracts must be in writing to be enforceable
  • The parties to the original transaction must have intended that all future owners be limited by the covenant
  • The covenant must involve the use or enjoyment of the physical property and cannot relate to any characteristic of the owner
  • Anyone purchasing the property must have been notified of the covenant at the time of purchase

Covenants may prohibit owners from engaging in some action related to the land, such as installing a hot tub, or they may require that property owners take certain actions, including keeping lawn and grounds manicured.

Contact Our Office

At Barnard, Mezzanotte, Pinnie, Seelaus & Kraft LLP, we have provided thorough and effective legal counsel to clients throughout Delaware County in Pennsylvania since 1980. We offer a free initial consultation. To schedule an appointment, call us at 610-565-4055 or 302-594-4535 or contact us online

Personal Service | Dedicated Advocacy | Cutting Edge Technology

Asset Protection in Pennsylvania

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Estate Planning Legal Help in Media, PA & Wilmington, DE since 1980

You’ve worked hard to acquire your wealth and assets. It makes sense to take the additional step of protecting them in the event of incapacity or death.

The attorneys of Barnard, Mezzanotte, Pinnie, Seelaus & Kraft LLP in Media can help. Our attorney team:

  • Is comprised of lawyers who each have at least 20 years of estate planning legal experience
  • Includes an attorney designated a Pennsylvania Super Lawyer
  • Includes attorneys experienced in providing legal counsel regarding end-of-life matters

Only an estate planning attorney can provide the full range of counsel and options necessary to maximize the protection of your assets and to tailor your estate planning to your specific goals. Estate planning legal tools that may work for you include:

  • A will
  • A trust
  • Incorporation
  • Life insurance trust
  • A living will/health care power of attorney/health care directive
  • Business succession planning

Our firm has a tradition of quality dating to our founding year of 1980. We are committed to fully meeting the expectations and goals of our estate planning clients, and can meet with you to first discuss your concerns regarding the protection and/or distribution of your assets. Our practice areas include business law and litigation; we can provide counsel regarding the protection of family businesses and can work both to prevent and resolve estate-related disputes.

To contact Barnard, Mezzanotte, Pinnie, Seelaus & Kraft LLP to schedule a free initial consultation regarding asset protection, please call 610-565-4055 or 302-594-4535.