By Attorney Edward Jesson - Updated 2/29/2024 (Originally Published 3/27/2019)
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 sand. 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.
By Associate Attorney Katy Currie
Valentine’s Day is a holiday to celebrate the endless love we have for the loves of our life. What better present to give your Valentine this year than ensuring your estate planning is done? There are many important aspects of sitting down and planning for your future through your estate planning documents, and unfortunately, there are countless issues that could arise without proper estate planning.
Without a will you lose the control you have over who inherits what when you pass away, and this could have huge implications on your loved ones. You are deemed to have died “intestate” if you die without a will. North Carolina has an Intestate Succession Act which is the default law that kicks in if you should pass away without a will. It names which of your surviving family members are considered your legal heirs in North Carolina.
The most common misconception surrounding intestate succession is that your spouse will inherit everything if you pass away without a will. This is not always the case if you have probate property and are survived by children or parents in addition to a spouse. For example, if you do not have a will and are survived by a spouse and one child (or grandchildren if that child is deceased), or a spouse and a living parent if you have no children or grandchildren, in addition to receiving the $60,000 spousal allowance, your surviving spouse takes the first $60,000 of your personal property, ½ of your real property, and ½ of whatever remains of your personal property while the child/grandchildren/parent inherits the remainder. If you are survived by multiple children or grandchildren, that number is cut to 1/3.
Additionally, in North Carolina, a will is the only way to name a guardian for your minor children in the event both parents pass away. You can also create a testamentary trust within your will, which will name a trustee who can be the money manager for inheriting children until they reach a certain age (later than the default age of 18).
So, while enjoying a nice romantic dinner to celebrate and show your love for your Valentine, it is also an opportunity to discuss planning for your future while you have some alone, intimate time together. If you approach the conversation with care and thoughtfulness, it could help you break the ice for those difficult, but important, decisions for your estate plan which will have a positive impact on your Valentine for years to come. If you would like to take the next step and work on your estate plan, give Jesson & Rains a call!
People often talk about probate and avoiding probate, but do you really know what probate means and what it entails? Check out this short video for a brief explanation! For a more detailed explanation, check out these resources!
By Attorney Kelly Jesson
This year, make a resolution to prioritize estate planning. Estate planning allows you to gain control and peace of mind over difficult and unpredictable situations. We have previously written about the difficulties caused by dying without a will in North Carolina and the pitfalls of the probate process in North Carolina; however, many of the “worst-case” scenarios can be avoided with proper planning. Let us help you make 2024 the year you plan for emergency scenarios and protect your business and personal assets for the benefit of your loved ones through estate planning.
Estate planning allows you to plan for what happens when you pass away, including naming a trusted person to handle your final affairs, name guardians for minor children, and distribute your assets according to your wishes. In addition to planning for death, our office drafts durable and health care powers of attorneys, where you can name agents to make both financial and medical decisions for you if you are incapacitated and cannot communicate.
There is no reason to wait to do planning, as you should get a plan in place before it is ever needed. If you do become incapacitated or ill, it may be more difficult or impossible to get documents in place, as you must have testamentary capacity to create valid estate planning documents.
Some of our clients delay estate planning because they do not have any friends or family members they trust to serve in fiduciary roles. In some circumstances, members of the firm may serve in these roles for the client if the client feels comfortable. It is better for you to take control and name someone yourself than to have the government appoint someone in an emergency or when you pass away.
We want to help you take CONTROL in 2024! Please call Jesson & Rains if you have questions about getting your estate plan in order or updating an existing estate plan. While You Build, We Protect.
By Associate Attorney Katy Currie
As the holiday season rolls around, our focus often shifts to spreading joy, giving gifts, and cherishing time with loved ones. However, amidst the festive cheer, there might be family dynamics that don't always align with the holiday spirit. If you find certain family members perpetually landing on the metaphorical “naughty list,” it might be time to consider updating your estate plan to ensure your wishes are safeguarded regardless of family conflicts or disputes.
If certain family members have a history of conflicts or strained relationships, it's crucial to communicate your intentions clearly in your estate plan. Explicitly outlining your decisions regarding asset distribution, guardianship, or decision-making authority in your estate plan can help avoid ambiguity and potential disputes. In some cases, you may want to explore options to protect your assets or ensure they are utilized according to your wishes, especially if you are concerned about how certain family members might handle their inheritance.
Without a will or living trust, your assets would pass according to the intestacy laws of North Carolina. This takes away the control you have over who inherits when you pass away and could have huge implications on your loved ones. Additionally, in North Carolina, a will is the only way to name a guardian for your minor children in the event that both parents pass away.
Furthermore, some people may require more complex estate planning depending on their family situation (such as second marriages, a child with special needs, or care of minor children) and the type and amount of their assets. Estate planning through devices such as living trusts allows you to put plans in place to address the specific needs of your beneficiaries, avoid the probate process, and address more complex tax issues depending on your assets.
Finally, a comprehensive estate plan not only plans for what happens after death, but also addresses who would be responsible for making decisions on your behalf if you became incapacitated during your lifetime. This includes naming someone to make financial decisions on your behalf and someone to make medical decisions on your behalf. Without such a plan, your family may have to go through more drastic and expensive court proceedings to have you deemed legally incompetent by a judge.
While it's essential to address concerns about family dynamics in your estate planning, doing so should be approached with careful consideration and guidance from professionals. The goal is not only to protect your assets but also to ensure your intentions are upheld and respected, even in challenging family situations.
As you prepare for the holiday season, take a moment to consider the importance of estate planning in securing the future for yourself and your loved ones, even when navigating the complexities of family dynamics. If you approach the topic with honesty, care, and thoughtfulness, it could help you get the ball rolling on making important decisions for your estate plan that will have a positive impact on your family for years to come.
Jesson & Rains, PLLC wishes you a joyous holiday season filled with love, laughter, and thoughtful planning for the future!
By Associate Attorney Danielle Nodar
Starting on January 1, 2024, the Corporate Transparency Act (“CTA”) will require almost all businesses to submit a report to the Financial Crimes Enforcement Network (“FinCEN”) containing personal information about the reporting company’s “beneficial owners.” This law was enacted to help combat global terrorism and money laundering but has consequences for many small business owners who up until now have been able to maintain their personal privacy while owning and operating a business.
In addition to the standard business information that one might submit to the Secretary of State, the CTA requires each business to provide personal information related to its “beneficial owners.” A beneficial owner is defined as a person who, either directly or indirectly, exercises “substantial control” over the business or who owns or controls at least 25% of the ownership interests in a business, such as stocks, voting rights, or interests in profits. A beneficial owner also includes a person in their individual capacity as managing the business, such as an LLC Manager, Board Member, or CEO, or it can be someone acting in their capacity as a fiduciary such as a Trustee of a trust that owns an interest in a business.
The required filing includes the individual’s full legal name, date of birth, current residential address, an identifying number from a non-expired government ID like a US passport or US driver’s license, and a copy of the ID document. This information must be uploaded to FinCEN’s website once it goes live.
Businesses that were formed before January 1, 2024, will have the entire year to submit their first report, so for existing business owners reading this, there is no need to panic! However, businesses created after January 1, 2024, must file their initial report within 90 days of the business’s formation. Starting in 2025, the initial report will be due 30 days after formation.
After the initial report, businesses only have to submit information to FinCEN if there is a change to the reported information (not annually like the report to the Secretary of State). There are hefty fines associated with willfully failing to comply or falsifying information on the reports, including a $500 per day fine for a continuing violation, up to a maximum fine of $10,000, and criminal penalties that may include up to two year’s imprisonment.
The CTA applies to businesses that are formed or registered to do business in the U.S. by filing a document with a government office. There are certain entities that are exempt from the CTA’s reporting requirements, such as nonprofits and large operating companies that are already subject to regulatory oversight such as publicly traded companies, insurance companies, and registered investment companies. A trust itself is not a business subject to the CTA; however, if a trust is an owner of a business subject to the CTA, the trust may need to provide identifying information about its beneficial owners to FinCEN.
Jesson & Rains is working with our current and new business clients to assist with understanding and complying with the CTA’s new reporting requirements. For all new businesses formed by the firm in 2024, Jesson & Rains will submit the initial report on behalf of the business. For our business clients that are members of our Annual Business Maintenance Plan, we will submit the initial report for 2024 and can assist with filing any amended reports so long as you are a member of the Annual Plan.
If you are interested in having Jesson & Rains handle these reporting requirements for you, please give us a call! More information on our Annual Plan services can be found here
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