By Attorney Edward Jesson
People and businesses get sued every day, and while no one enjoys being on the receiving end of a lawsuit, there are certain things that should be done to try and make the experience as painless as possible. In North Carolina, a lawsuit is generally started when an individual or a business (also called the “plaintiff”) files a complaint. The clerk of court issues a summons, which must be served on the defendant (the party being sued). This can generally be done by mailing it certified mail, return receipt requested, sending via FedEx or UPS, or having the county sheriff personally deliver a copy of the summons and complaint.
Once the summons and complaint have been served, the defendant has 30 days to respond to the complaint in district and superior courts. In small claims court, when a defendant is served (in some instances this can be achieved by the sheriff leaving a copy of the complaint taped to the front door), they will usually receive a notice of hearing along with the complaint.
Here is the first point that I would like to make clear: if you are served with a lawsuit, please do not wait until day 29 to contact an attorney. Evaluating your position as a defendant in a lawsuit and preparing the correct response takes time. While you can usually get a 30-day extension of time to respond, doing so at the last minute is not always possible, and the extension likely won’t be granted if it is after day 30. If you fail to respond to the complaint in time, the plaintiff may be entitled to a default judgment. It is exactly what it sounds like— they will automatically win “by default”! A default judgment can be hard to overcome once it is entered, and the excuse that you simply “forgot” to respond is usually not enough.
Point number two: Do not answer the complaint without first consulting with an attorney. In an answer, you will generally just admit or deny the allegations to the complaint, but that is not the only response that is available. There are several ways that you may be able to get the lawsuit dismissed (meaning the case is thrown out), but that option is not available if you admit or deny allegations in the answer first. By doing that yourself, you may be preventing an attorney from later dismissing the lawsuit.
For most people who are sued, it is for the first time in their lives (and hopefully the only time). Once the shock, confusion, and anger has worn off, it is important not to bury your head in the snow. Contact a litigation attorney who can help you navigate through the civil system and, hopefully, get your case resolved in the most efficient way possible. If done correctly, you may save a lot of money; however, trying to handle it yourself oftentimes results in the expenditure of more money. If you or anyone you know has been sued, please give the attorneys at Jesson & Rains a call.
Digital Assets and Estate Planning
By Associate Attorney Danielle Nodar
One of the most important decisions when creating an estate plan is determining what will happen to your assets when you pass away. When thinking of assets, the usual tangible or financial assets come into mind: real estate, bank accounts, cars, jewelry, etc. However, today as more and more of us are active online, another important and often overlooked asset are digital assets. Digital assets cover a wide range of a client’s assets, from the sentimental and personal items such as photos stored online and email and social media accounts, to assets with a monetary value, such as PayPal accounts, domain names, intellectual property stored on a computer, business information such as client lists, and cryptocurrency.
Without creating an estate plan that references these assets, state and federal data privacy laws may make it difficult or even prevent loved ones from accessing your digital assets when you pass away. If no planning has been done, an online provider’s terms of service agreement will likely control what happens to a consumer’s account after death. As the law slowly catches up to technology, legislation has been enacted to allow the owner of digital assets to protect these assets after death. For example, The Uniform Fiduciary Access to Digital Assets Act has been passed in the majority of states (including North Carolina) and provides that an owner of digital assets can specify who will be able to access and dispose of the digital assets after death. Therefore, by creating a formal estate plan, your documents can designate a specific person (such as your executor or trustee) to have access to your digital assets when you pass away. You can also include provisions that this person will have the ability to reset or recover any passwords in order to access your data and assets.
After determining who should be allowed access to your digital assets after death, additional steps should be taken to ensure that this person will be able to more easily access any relevant data or digital assets. During your lifetime, you can create a list of your digital assets so that your loved ones have an idea of where to begin in collecting digital assets. This list should include usernames, passwords, security questions associated with accounts, and instructions on what should be done with accounts after death, such as which accounts should be deleted. As this list contains key information for accessing digital assets, it should be kept in a secure location that can be accessed by loved ones after death. We do not recommend that clients include this information in their wills, as they can be accessed by the public after death.
In addition to creating an estate plan that plans for access and disposition of digital assets, certain online providers have internal procedures and policies that you can use to protect your digital assets after death. For example, Facebook ‘s privacy and security settings allow you to name a “legacy contact” to handle your account after you pass away. Instructions can be found here: https://www.facebook.com/help/103897939701143?helpref=faq_content.
Google also has an option where you can name an “inactive account manager.” This allows the Google account owner to specify what should happen to the account after it has remained inactive for a period of time. The account owner can list persons who will be notified that the account will be closed before it is deleted, giving loved ones time to access the account and download any important content before the account is deleted. Instructions can be found here: https://support.google.com/accounts/answer/3036546?hl=en.
With some basic planning, you can provide your loved ones with access to assets that could have considerable sentimental and monetary value. As society and our lives continue to get more intertwined with the digital world, it becomes crucial that estate plans are comprehensive and provide protection and instructions for our digital assets.
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Kelly Rains Jesson