Just as important is making sure that the original Will can actually be found when it is needed.
At Carey & Stewart, we occasionally receive calls from families who know that a loved one had a Will, but cannot find it. In other situations, the family has a photocopy of the Will, but no one knows what happened to the original.
Those situations can create unnecessary complications at an already difficult time.
After a person dies, his or her Will generally must be presented for probate so that the estate can be administered according to its terms.
In West Virginia, the law specifically contemplates delivery of the Will to the appropriate county clerk or to the executor named in the Will, who can then offer it for probate.
For that reason, locating the original signed Will is highly preferable. When the original cannot be located and only a copy remains, additional legal issues may have to be addressed before the estate can proceed.
The better approach is to avoid that problem in the first place.
There is a simple point that is sometimes overlooked when people prepare their estate plans: You will not be the person looking for your Will when it is needed. A Will provides instructions for how a person's assets are to be distributed after his or her death and identifies the person chosen to carry out those instructions. That means it is ultimately your executor - not you - who will need to locate the original Will and present it for probate.
You do not necessarily need to give your original Will to that person today. But your executor should know that you have a Will, where the original is located, and how to obtain it when the time comes.
A Will stored somewhere that no one knows about may cause almost as much difficulty as having no Will at all. For example, storing your Will in a safety deposit box at a bank - your executor or executrix will not be able to get into the safety deposit box unless his or her name is already on the account.
There is another important consideration when preparing or updating your estate plan: tell your attorney about any prior Wills or codicils you have signed.
Do not assume that an old Will can simply be forgotten because you have decided to make a new one.
West Virginia law provides specific ways in which a Will may be revoked. A properly prepared new Will will commonly include language revoking prior Wills and codicils. Depending upon the circumstances, additional steps may also be appropriate to make clear that an older original Will is no longer intended to have any effect.
That is especially important if copies or original versions of an earlier Will may still be in the possession of family members, a former attorney, or someone previously named as executor.
When meeting with an attorney to prepare a new Will, let the attorney know about every prior Will or codicil you remember signing and, if possible, where the originals and copies are located. Your attorney can then advise you on the appropriate steps to revoke and dispose of the prior documents.
Simply putting the old Will in a drawer and hoping no one finds it is not an estate plan.
Once your estate planning documents are completed:Keep the original Will in a secure location where it can be located after your death.
Estate planning is intended to make matters easier for the people you leave behind. Taking a few additional steps after signing your Will can help accomplish exactly that.
Carey & Stewart, PLLC assists individuals and families with estate planning and probate matters in West Virginia. If you have questions about preparing or updating a Will, or about administering the estate of a loved one, feel free to contact our office to discuss your situation.]]>The lawsuit, Settle v. Trinity Health System, is pending in the United States District Court for the Southern District of Ohio. The Court recently approved a notice process designed to inform potentially affected employees of their rights and their opportunity to participate in the case.
According to the allegations in the lawsuit, Trinity Health employees may not have received all overtime compensation allegedly owed under federal law in certain circumstances. Specifically, the lawsuit alleges that some employees were not properly compensated for overtime resulting from missed or interrupted meal periods and/or from the failure to include certain bonus payments when calculating overtime compensation.
Trinity Health denies the allegations and contends that it properly compensated employees in accordance with applicable law.
Importantly, the Court has not decided whether the plaintiff or Trinity Health is correct. The case remains pending, and no determination on the merits has been made.
According to the Court-approved notice, potential participants include:
All hourly-paid, direct patient care Trinity employees employed during the relevant period who (1) worked 40 or more hours in one or more workweeks and allegedly did not receive overtime pay due to a missed or interrupted meal period, and/or (2) were paid a bonus that allegedly was not included in their regular rate of pay for purposes of overtime compensation in one or more weeks in which they worked more than 40 hours.
Employees who receive a notice should carefully review it to determine whether they may fall within the group identified by the Court-approved notice.
Many people are familiar with class actions in which individuals are automatically included unless they choose to opt out.
FLSA collective actions work differently.
In an FLSA collective action filed in Ohio, eligible employees are generally not included automatically. Instead, they must affirmatively choose to participate by signing and submitting a consent form.
As a result, employees who wish to participate must take action before the deadline established by the Court-approved notice.
Opting in means that an employee chooses to become a participant in the lawsuit.
Employees who join the case may be entitled to share in any recovery obtained through settlement or judgment if the claims are ultimately successful. Participants are also generally bound by court rulings, judgments, and settlements that occur in the litigation.
The Court-approved notice further explains that participants may be asked to provide information relating to their employment and, in some circumstances, may be required to participate in discovery or provide testimony.
Employees who choose not to participate will generally not share in any recovery that may be obtained in the lawsuit. However, employees who do not join typically retain the ability to pursue their own claims separately, subject to any applicable statutes of limitation and other legal requirements.
Whether participation is appropriate is a decision each employee must make independently based on his or her own circumstances.
The Court-approved notice contains important deadlines for individuals who wish to participate in the lawsuit. Employees who receive a notice should review it carefully and ensure that any required forms are submitted on time if they decide to participate.
Employees who receive the Court-approved notice should review the notice carefully. The notice contains additional information regarding eligibility, participation, deadlines, and the attorneys appointed to represent individuals who choose to join the case.
As with any legal matter, individuals with questions about their rights should consult qualified legal counsel.Many employees are unsure whether they are being properly paid for all hours worked. Wage-and-hour laws can involve issues such as overtime pay, meal-break deductions, off-the-clock work, employee classification, bonus calculations, and payroll practices.
Our firm regularly assists workers in understanding their rights under federal and state wage-and-hour laws. Individuals who have questions about workplace pay practices or believe they may not have been properly compensated are welcome to contact our office for a confidential consultation.
Because every workplace and compensation system is different, obtaining individualized legal advice can help employees better understand their rights and options under the law.
Contact our office to learn more about wage-and-hour protections and how they may apply to your situation.]]>