By: Marshall Chriswell, a Pennsylvania child custody attorney
As a lawyer handling family law issues in Pennsylvania, divorced or separated parents often ask me if they need a child custody order. My answer is often yes, and here is why:
Usually when parents separate, there is no custody order in place. In some rare cases, the parents are friendly enough to work out an informal (unwritten) custody arrangement with no problems. More often though, a custody order will be necessary. The worst time to obtain a custody order is after a problem arises.
What are the benefits of having a custody order?
Compliance with child custody orders is mandatory. However, it is important to understand that custody orders are not permanent. Either party can ask the court to modify the order at any time, particularly if circumstances change or a different arrangement is in the best interest of the child.
Child custody orders can be flexible, and they can be tailored to the agreement of the parties. Even if the parents agree on a custody arrangement, it is advisable to have a custody order in place in case a dispute arises.
I know, I know…these days there is a month for everything, right? In fact, August is National Immunization Month, National Panini Month, National Breastfeeding Month, National Water Quality Month, National Eye Exam Month, and on and on. While all of these are important in their own way, I encourage you to actually take some time this month to think about the state of your estate plan.
Did you know that most people don’t have a will? Are you one of them? Many of my clients have put off the decision to make a will for months or even years by the time that they call my office for a consultation. You know it’s important. Why wait?
To commemorate National Make a Will Month, I will be offering a 10% discount for any client who calls to make an estate planning consultation on or before August 31, 2013. Click here for my Contact Information.
I previously explained why PA Residents need a will. The question is, what will happen to your cash, investments, real estate, and tangible personal property when you are no longer here? More importantly for parents, what will happen to you minor children? If you don’t create a will, then your affairs will be handled according to Pennsylvania law – not your wishes. Unfortunately, that is often not a good outcome.
By having a will drafted by a professional, you can ensure that your assets pass to individuals or charitable organizations of your choosing. You can also select guardians for your minor children, and set up trusts in the event that your heirs are too young or otherwise incapable of handling their inheritance at the time of your death. Maybe most important of all, a valid Pennsylvania will can eliminate awkward, complicated, and expensive legal battles over issues like child custody and probate. The certainty that comes with a valid will is a priceless gift that you can give your family now.
To commemorate National Make a Will Month, I will be offering a 10% discount for any client who calls to make an estate planning consultation on or before August 31, 2013. Click here for my Contact Information.
All contractors performing home improvements in Pennsylvania are subject to the Home Improvement Consumer Protection Act, 73 P.S. 517-1, et seq. Many contractors are not aware of this law, which carries strict requirements and harsh consequences for those who don’t comply.
As a lawyer practicing business law, many of my clients are self-employed. Plumbers, electricians, masons, carpenters, kitchen/bath installers, and even handymen are all considered “home improvement contractors” under the Act.
Contractors must comply with the Act when they perform any of the following services for more than $500.00:
(i) Repair, replacement, remodeling, demolition, removal, renovation, installation, alteration, conversion, modernization, improvement, rehabilitation or sandblasting.
(ii) Construction, replacement, installation or improvement of driveways, swimming pools, pool houses, porches, garages, roofs, siding, insulation, solar energy
(iii) Without regard to affixation, the installation of central heating, air conditioning, storm windows or awnings.
As you can see, the definition of a “Home Improvement” under the Act is very broad. Further, there are very specific requirements that every contractor must follow.
First, all home improvement contractors must register with the office of the Pennsylvania Attorney General. The registration process is relatively simple, and can be completed online (for a small fee) at the Attorney General’s website. Registrants also must prove that they carry at least $50,000.00 in liability insurance to protect their customers.
Once a contractor is registered, they will be provided with a registration number that must be prominently displayed on all advertisements (including those appearing on vehicles), and written contracts.
Second, the Act requires contractors to use written contracts for all home improvement services. If contractors do work without a written contract, they may not be able to collect payment from a non-paying customer. All contracts must include very specific terms, including:
Finally, the Act prohibits specific acts of misrepresentation by a contractor, and subjects violators to criminal prosecution, up to and including felony charges.
The Act imposes various other restrictions on home improvement contractors. Violations of the Act can result in not only the inability to collect from a non-paying customer, but also hefty fines for the contractor.
Anyone providing home improvement services should consult an attorney regarding their obligations under Pennsylvania law.
By: Marshall Chriswell
This week, the Pennsylvania Supreme Court issued an interesting decision about shale gas that has many Western Pennsylvania landowners breathing a sigh of relief.
Nearly everyone in Western Pennsylvania has been affected by, or at least heard about, shale gas. The Marcellus shale formation (and increasingly the Utica formation) have brought both economic activity and incredible amounts of controversy, to our region.
Shale gas has also caused plenty of activity in the Pennsylvania courts. Why would that be? Especially when natural gas has been extracted from Western PA wells for over a century? The answer is obvious: gas rights have become exponentially more valuable with the advent of shale gas, and now folks are disputing who actually owns those rights.
A little background: When someone sells or transfers a piece of property, but wants to retain the gas, oil, or mineral rights (i.e. the right to royalties) for themselves, their attorney makes sure that the deed specifically states that the seller is retaining those rights. If it’s gas rights, the deed says the seller is reserving the “gas” or “natural gas.” If it’s oil rights, the deed says the seller is reserving “oil,” and if the seller is retaining coal, rock, or any metallic substance, the deed says the seller is reserving “minerals.”
In this most recent case, Butler v. Powers, the deed in question was Mr. Powers’ deed from way back in 1881. That deed only said that Mr. Powers owned the “minerals and petroleum oils.” Then, in 2009, Mr. Powers’ heirs appeared in court and argued that they should own the shale gas rights, too. Why? Because shale gas is actually located inside the shale, and shale is a mineral. Essentially, they argued that because they owned the shale, they also own the shale gas.
This was a very clever argument, and several courts heard the case, and disagreed on the right answer. Finally, this week, the Supreme Court settled the argument once and for all. The Court did the sensible thing. The Justices unanimously decided not to overturn 100+ years of property law. So, in order to retain gas rights, a deed still must specifically state that the owner is reserving the “gas” or “natural gas.”
Had the Supreme Court agreed with Mr. Powers’ family, and reversed the law, it would have thrown many deeds into question, causing big problems for landowners, and possibly stalled shale gas development in Pennsylvania.
This case also illustrates how important it is that deeds are always drafted properly, and with the assistance of an attorney.
Do you have a real estate or natural gas issue? I would be happy to help. Call to schedule a consultation today.
By: Marshall Chriswell
Estate planning is important for everyone, but particularly for unmarried couples.
Proper planning can provide effective and efficient disposition of assets consistent with one’s intentions, tax savings and, of course, peace of mind. A good estate plan in Pennsylvania may include a will (and possibly a memorandum distributing tangible personal property), powers of attorney (financial and medical), one or more trusts, investment planning, etc.
Often, I am consulted by married couples who want to make sure that their spouses, and ultimately their children and grandchildren obtain the assets that the clients have worked so hard to accumulate. Planning for married couples is fairly straightforward. Pennsylvania has statutes which specifically protect a surviving spouse’s beneficiary rights to real property, probate estates, etc.
What about unmarried couples (some prefer the term “domestic partners”)? The short answer is that Pennsylvania provides no protection, as a matter of statutory law, for a surviving partner. Of course, some unmarried couples have been together for years or decades, and even have children together. But without proper estate planning, a surviving partner may be left with nothing. Here are five estate-planning tools for unmarried couples to consider:
1. A Valid Pennsylvania Will
In Pennsylvania, if a person does not have a will the estate assets will legally pass to his/her “heirs.” Heirs include a person’s spouse, children, parents, aunts, uncles, and even cousins. A person’s partner is not an heir. The only way to ensure that the assets of one partner are passed to the other is to have a valid Pennsylvania will drafted by an attorney.
A properly drafted will should also include guardianship provisions for minor children. Without such provisions, a court will have to decide who will obtain custody of the children upon the death of one partner. If the child is the biological or adopted child of both partners, then this is usually not a problem. However, if this is not the case, and if the deceased partner’s intentions are not known, a court may award custody to a grandparent, aunt, uncle, sibling, or other person.
2. Powers of Attorney
When a person becomes physically or mentally unable to make decisions for themselves, their finances, or their healthcare, then a person must be appointed to make decisions for them. If the injured/ill person has a financial power of attorney and a healthcare power of attorney, these documents will spell out who should make those decisions.
If a person does not have power of attorney documents, often a court must appoint a “guardian” who will control the person’s finances and make healthcare decisions on their behalf. If the injured/ill person is married, a spouse is the first logical choice for appointment by the court. However, if the couple is unmarried, the court is more likely to appoint a parent, child, sibling, or other blood relative to be the decision maker. You can see how important these documents can be.
3. Deeds to Real Property
When married couples purchase property in joint names, Pennsylvania law recognizes it as “entireties” property, meaning that if one spouse passes away, the other spouse automatically inherits the deceased spouse’s entire interest in the property. However, there is no such protection for unmarried couples. Unmarried couples must be sure that their deed is drafted properly, with ownership being as “joint tenants with the right of survivorship” if they want to ensure that the property passes between partners at death.
4. Beneficiary Designations
Unmarried couples should be particularly careful to make sure the beneficiary designations on life insurance policies and investments (IRA, 401k, mutual funds, etc) are accurate and up to date.
Trust can provide additional protection and flexible planning alternatives to ensure assets are safely passed on to a surviving partner and/or the next generation. If you have significant assets, or you want to ensure that assets are preserved for children and grandchildren, consider asking an attorney about setting up a trust.
Estate planning is a necessity for everyone, but particularly for unmarried couples. Without proper planning, a surviving partner can be left without a home, and may lose other real estate, personal property or cash that both partners worked hard to accumulate.
To discuss planning options, Contact Marshall Chriswell to schedule a consultation.
When drafting wills and other estate planning documents for clients, we always discuss tangible personal property. What is tangible personal property? It’s all of your “stuff” – Cars, furniture, appliances, antiques, wedding bands, tools, equipment, dishes, and knicknacks, just to name a few. Many clients want to ensure that certain items are passed onto particular individuals, often for sentimental reasons. Many have kept a list, or even labeled those items discreetly throughout their home.
The question is, how can the client make sure these items end up in the right hands after they are gone? Does all that “stuff” have to go into the will? The answer is to create a Memorandum Distributing Tangible Personal Property along with your will. This way, you can make these decisions in the comfort of your own home, even years after your will has been executed.
Here are the basics:
Lastly, and most importantly, using a Memorandum Distributing Tangible Personal Property is not a substitute for updating your will and other estate planning documents. You should review your estate plan every year, or anytime you have a life-changing event (a birth, death, marriage, divorce, major purchase, relocation, starting a business, significant change in net worth, or declining health) For more information about estate planning, see my Frequently Asked Questions on Wills and Estate Planning, or contact me.
When co-owners of real property in Pennsylvania cannot agree on the management or sale of the property, Pennsylvania law gives any owner the right to request a “partition” of the property.
What is a Partition?
A Partition is a type of lawsuit where a judge, or a court appointed master will hear evidence and determine whether the property is to be divided or sold. The procedure for partition actions are found at Pa.R.C.P. 1551 et seq. To initiate a partition action in Pennsylvania, a co-owner must file a partition complaint at the Court of Common Pleas. The Complaint will set forth the property description, the names and addresses of the co-owners, and their interest in the property. The Complaint will often include claims for damages, such as taxes, mortgage payments, maintenance, or other property-related expenses.
Once the complaint is filed and served, the judge can issue an order directing partition of the property. After the order is issued, the judge will schedule a preliminary conference, during which the co-owners can set forth their positions, and try to reach an agreement regarding the property. If they cannot agree, then the judge will either continue to handle the matter his/herself, or appoint a partition “master’ (usually a local attorney) to handle the case. The judge or partition master will do some or all of the following: obtain an appraisal of the property, view the property personally, conduct hearings, and attempt to settle the matter.
How can Property be Divided?
The first question the judge or master will answer is whether the property can be physically divided into “purparts”. The word “partition” itself sounds like, and can be, a physical division of the property. However, many parcels are not amenable to being physically split up among the owners. For example, a small lot with a house could probably not effectively be divided and still retain its value. In these types of cases, the court will order a sale of the property rather than physical division.
Where the subject property is a larger tract of land, a court may issue an order to divide the property, giving each owner a physical piece of the property. The purparts might be of equal acreage, but if one part of the property contains improvements or valuable physical resources (timber, minerals, etc.), then the acreage can be divided in such a way that the new parcels are different sizes, but still equal in value.
Sometimes, even large tracts of land cannot be divided in a way that each owner obtains an equal share. In these cases, the court may order the land to be physically divided, and order the owner who obtains a more valuable piece to pay his co-owners the difference in value. This payment is called “owelty.” If even this solution is not workable, then the court will order a sale of the property.
Partition Sale – Private or Public
Once a judge or master has determined that a property cannot be adequately divided physically, the Court will order a forced sale of the property. First, the court must consider a “private sale” where only the current owners have the opportunity to bid on the property. If no current owner wishes to bid, then the court will order a public sale where any interested person may attend and bid.
PA law provides for the partition of real estate where owners can’t agree on how the property should be managed, or whether it should be sold. The partition process itself can be time-consuming and expensive. The costs of a partition action will reduce the amount realized by each owner; therefore, it is always best to reach an amicable settlement without court intervention if possible.
To discuss a partition, or other real estate law issues in Pennsylvania, contact the Chriswell Law Offices.
In Pennsylvania, a victim domestic violence can file for a Protection From Abuse (PFA) Order. A PFA is also known as a “stay away” order or a “restraining order.” It prohibits an abuser (the Defendant) from having any contact with the person who files the petition (the Plaintiff). The order will prohibit any type of contact by the Defendant, including letters, phone calls, and electronic communication.
A court can issue a PFA order if the Plaintiff was a victim of actual physical violence, or if the Defendant attempted to cause bodily injury, or if the Plaintiff was put in reasonable fear of imminent bodily injury by the Defendant (See 23 Pa.C.S. 6102).
A Protection From Abuse Petition can be filed against the Plaintiff’s spouse, a current or former intimate partner, or any family or household member. The Plaintiff may file a PFA petition for his/herself, or on behalf of another family member, including minor children.
Usually a court will issue a Temporary PFA Order, which will last until a hearing can be held. After the hearing, the court may issue a Final PFA Order, which will be in effect for up to three years.
A Final PFA Order will appear on the Defendants permanent public record as a “finding of abuse.” The entry of a temporary PFA Order can be expunged if a Final PFA Order is never entered.
In addition to prohibiting contact, a Protection From Abuse order can also include one or more of the following provisions:
To file for a PFA, or if a PFA has been filed against you, Contact The Chriswell Law Offices for representation.
By: Marshall Chriswell
This time of year in Pennsylvania, outdoor sportsmen clean their rifles, don their blaze orange and camouflage winter gear, and head into the woods. Deer hunting is a time-honored tradition in the Commonwealth; it is a great opportunity for bonding with family and friends, and of course stocking up on some tasty venison to enjoy for the months to come.
However, hunters should be aware that Pennsylvania has enacted important statutes and regulations that, if not properly followed, can result in civil or criminal sanctions, including fines or loss of hunting privileges.
This week, in honor of Pennsylvania (firearm) deer hunting season, I will shed some light on Pennsylvania hunting laws. I won’t mention every single statute and regulation, but my posts should give you a good idea of the laws of the land.
When planning your hunt, one of the first things you must do is determine where you are going to hunt. One of the most common legal issues to arise during hunting season is that of property rights.
Contrary to the belief of some, hunting on private property without permission is trespassing – even if the property is unoccupied, and not posted or fenced. In Pennsylvania, you may not hunt private property without the permission of the landowner. Written permission is not required, but it is advisable.
If you hunt on private property without any knowledge as to whether hunting is permitted there, you may not have committed a crime, but the landowner may sue you for trespass and recover money for any damage that you caused to his land. They may also call the game commission or the police and have you removed. Further, the landowner will not be responsible if a trespasser is injured by a dangerous condition on his land.
However, if the owner of a property does not permit hunting on his/her land, and you still hunt despite being aware of the owner’s wishes (by posting, fencing, or other notification from the owner), you may also be charged criminally. If you are convicted, you will be fined, and the offense of “criminal trespass” will be a part of your public record for employers, banks, and everyone else to see. If you are found guilty of other violations of Pennsylvania hunting laws in conjunction with criminal trespass, the penalties can be more stringent, and you may lose your hunting privileges for up to fifteen years.
The bottom line is that private property is just that: private. You should always ask permission from a landowner before hunting their property. Many landowners are happy to grant you permission, but if you trespass, the landowner may decide to close his property to hunters altogether. Then, you will lose a promising hunting spot, in addition to risking criminal charges.
I am routinely approached by clients who have put off making a will, often for many years. I understand that confronting the idea of one’s own death is not an easy thing to do, but the writing of a valid Pennsylvania will is extraordinarily important, for several reasons:
1. A Valid Pennsylvania Will is Enforceable after your Death
This may sound obvious, but it is extremely important from a legal perspective. A valid Pennsylvania will is a legal document that states your post-death intentions with regard to the disposition of your property, the guardianship of your minor children, and the handling of your estate. Very few other documents or agreements are enforceable after death, and a well-written will is very difficult for anyone to contest. The writing of a will offers you the opportunity to gain certainty and peace of mind over what will happen after you are gone.
2. Without a Will, Pennsylvania Law Decides Who Gets What
If you die without a will, the disposition of your property will be decided by Pennsylvania Law, under the Pennsylvania Intestacy Statute, 20 Pa.C.S.A. § 2104, et seq. Many people assume that, without a will, the law will give everything to their spouse, or their children – this is not always the case. The law provides for inheritance by parents, grandparents, brothers and sisters, aunts and uncles, or even cousins. While spouses and children will always receive something under this law, it is often not the amount or the percentage that the deceased person intended. Further, if you have a domestic partner (non-spouse), or close friend who you would like to have something when you pass away, the law will leave them out of the estate unless you have a valid will naming them as a beneficiary.
3. Without a Will, Pennsylvania Law Decides Who Will Care for your Children
If you die without a will, and you have minor children, who will care for them? The answer is that the court will decide. One or more persons will file a petition to be appointed guardian of the child(ren), and the court will conduct a hearing to determine who is best suited to care for them. These proceedings often lead to disputes among family members, and can certainly be difficult for the child. If you prepare a Pennsylvania Will, you can appoint a guardian of your minor children. The knowledge that your children will be cared for by a loved one will provide you with invaluable peace of mind.
4. A Will Can Prevent Family Disputes
We have all witnessed it. The passing of a loved one often leads to unfortunate family squabbles. The majority of these disagreements can be stemmed or eliminated by the drafting of a well-written will. This is because the will provides your family with tangible evidence of your intentions, and therefore eliminates the basis for many disagreements.
5. A Will Allows You to Appoint an Executor
One of the most important reasons to make a will is that you can appoint a trusted, responsible person to handle your affairs after you are gone. Without a will, the court will choose a family member (or two) or other beneficiary of your estate to manage the estate. This leads to more family squabbles, and sometimes the person chosen is not the best person for the job. Why? Being an executor (or executrix, for a female) is a difficult job. They will have to manage the estate finances and make sure that the distributions of property are made to the correct beneficiaries at the right time. An attorney will help with this, but it is still a complex process that many people are not equipped to handle, especially in a time of grief. With a valid Pennsylvania Will, you can name a person who you know will be able to handle the minutiae of the estate, and who will be diplomatic enough so as not to cause arguments among your friends and relatives.
6. A Will Can Avoid Death Tax Liability
Another reason that many people create a will is to avoid tax liability. If your estate is subject to the Federal Estate Tax, then a valid Pennsylvania will, with the appropriate trust provisions, can offer a significant tax savings, leaving you with more of your hard earned assets to pass on to the next generation.
For more information about wills and estate planning, click here.
To schedule a consultation, Contact Marshall D. Chriswell