If I file a Chapter 7, what can I keep?

When debt consolidation and loan modifications haven’t worked, the only option may be to seek relief under Chapter 7 of the U.S. Bankruptcy Code. If that is what you decide to do, what property can you keep and what property will you lose? The answer will depend on the nature of the property and the value it has at the time of filing the Chapter 7 petition.

The value of an asset is determined on the day you file your petition. That is the day the “bankruptcy estate” is created. When you file for relief under the bankruptcy laws, the Bankruptcy Court takes control of the bankruptcy estate that includes all of your property. The bankruptcy estate is administered by the different levels of Trustees that make sure your exemptions are protected and that non-exempt property is identified and preserved for the interests of the creditors. In theory, whatever is non-exempt is to be sold and eventually distributed to the creditors that filed claims in your bankruptcy.

On March 27, 2013 the Ohio Homestead exemption increased to $125,000.00. This was a very significant rise of nearly 500%. Because of the way the new exemption statute was drafted, it again increased to $132,900.00 after just 4 days. The value of an exemption is the amount of the equity or the amount you own after the deduction of secured debt such as mortgages or other liens properly filed against the property in question. Therefore if the appraised value of your home is $200,000.00 and you have no mortgages against the property, your interest or equity in the property is the $200,000.00. You are only allowed to “keep” $132,900.00 as your exemption (the amount of the exemption applies to each titled owner on the deed). In this case, you would not be able to keep the residence without accounting for the non-exempt portion. If you had a properly filed first mortgage of $50,000.00 and a second mortgage of $30,000.00, your equity would be $120,000.00. You would be able to keep your residence because it would be exempt. Of course you would have to reaffirm and continue to pay the first and second mortgages. But there would be no non-exempt portion available for other creditors in the bankruptcy.

Ohio law defines the list of exemptions that are available in bankruptcy cases. See Ohio Revised Code 2329.66 for a complete list. The list has been updated, and effective 4-1-2013, the following are some of the more common exemptions that are available if you file a Chapter 7 bankruptcy:

1. Homestead exemption. You are entitled to keep $132,900.00 of value in a residence titled in your name. If you are filing a joint petition, each person can claim $132,900.00 as long as both names are on the deed. Please note that this exemption only applies to real estate you live in. If you own a piece of real estate but reside elsewhere, you may not be entitled to this exemption.

2. Motor Vehicle. $3675.00 in one motor vehicle titled in the debtor’s name.

3. Cash on Hand or Owed, Tax Refunds, and Money on Deposit.  $450 for each debtor. This includes the cash value in a whole life or investment based life insurance policy unless there is a qualified beneficiary. See me for details on this one.

4. Household Goods and Furnishings. $575 per item and jewelry up to $1,550 up to a grand total of $12,250.00.

5. Tools of profession, trade or business.  $2,325.00.

6. Earned Income Credit From Tax RefundUnlimited.

7. IRA, Rollover and Roth IRA. Unlimited

8. Personal Injury Settlement $23,000.00

9. Anything exempted by federal law. This generally includes pension, profit sharing, 401k.

10.The wild card. $1,225.00. You can apply the wild card amount to any asset that you need more equity protection up to the maximum.

Each of these bankruptcy exemptions are per individual. If you file a joint bankruptcy, the jointly owned household goods have an aggregate exemption of $24,500.00.

For more information contact me. www.candito.com

Every 3 years, Ohio law requires the numbers above to be adjusted to reflect the change in the consumer price index starting April, 2010.

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Productivity Tools: Another Look

I want to share a couple of new tools that have been refined since my first post on Need Help Getting Things Done?. The Getting Things Done system is powerful enough to use with just paper lists. You really don’t have to use electronic tools. But I love technology and enjoy finding the “best fit” to what I am doing. I have recently shifted from Toodledo to Nirvana for my GTD list manager. Nirvana is elegant, robust and has all the elements for the GTD set up as I use it. If you are a hardcore GTDer, I recommend this program highly. The Nirvana developers and support community are top notch.

A couple of new REALLY good capture tools for the iPhone, iPad or any IOS device have been released. Captio is the tool I currently use. It is fast and simple. You type in the information and hit send. It will send the note to any email account you desire. I set my Captio to send the item to the Nirvana inbox. You could use the same set up to send your captured information to any program that accepts emailed tasks.

If you want more options for your captured information take a look at Drafts. Extensive output options let you send text to Twitter, Facebook, App.net, email, SMS, a Calendar event, quickly save it to Dropbox or Evernote.

Regardless of whether you are using GTD, another system, or no system; you may want to take another look at Wunderlist 2 as a capable To Do list. This is a free online program that comes with a desktop version to download and sync with your online account. The first thing you notice is how beautiful and simple this program is. The online version is just as responsive and just as pretty as the desktop. I recommend you give it a spin. It’s FREE. You can sign up or log in here. To download the desktop program and get additional information, go here.

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What can I do if someone steals my Identity?

Today we place our personal data on Facebook, Twitter, Amazon, QVC, Ebay, Craigslist and hundreds of thousands of other sites. But even if we don’t shop or “play” online, we still throw out garbage containing personal documents, provide identification at the local stores, and purchase items using checks that contain sensitive information identifying who we are.  The Federal Trade Commission estimates that as many as 9 million Americans have their identities stolen each year. If you have been a victim, you know how traumatic and disorienting the experience can be. If you suspect that you may be victim of identity theft, or have been notified by an agency or company with whom you have transacted business that your personal data has been compromised; there are some basic steps you need to take.

1. Review Credit Reports. The first step you should take is to review your three credit reports (Experian, Equifax and Transunion) at least annually. If you have knowledge your identity or accounts have been compromised, you need to take this step immediately. You can obtain a free copy of each report at the following site: AnnualCreditReport.com

Don’t be surprised if you cannot obtain all three during your first visit. The site is not easy to maneuver. You have to read the webpages carefully to make sure you are proceeding to your free credit reports. My beef with this site (and it is one of the better ones) as well as the other fraud protection sites, is that you’re constantly being solicited to purchase different monitoring and credit score products. Some of these products may be very good and beneficial to your needs, but they are distracting when making your request for your credit reports. Therefore you to be on guard to look for the “no thanks” and “continue” buttons.

If you suspect or have knowledge that your personal information has been compromised, I recommend that you check your credit reports periodically. Identity thieves sometimes hold a victim’s personal information for later use or is shared among a group of thieves at different times.

2. Fraud Alerts. The next step is to make a fraud alert. You can file a report with any of the three major credit reporting agencies either online, by calling the toll-free number, or in writing. The nice thing about filing the fraud alert is that you do not need to file with each of the agencies. When you file with one of the agencies, the other two are notified as well.

The initial 90 day fraud alert indicates to anyone requesting your credit file that you suspect you are a victim of fraud. When you or someone else attempts to open a credit account in your name, increase the credit limit on an existing account, or obtain a new card on an existing account, the lender must take steps to verify that you have authorized the request. If the creditor cannot verify this, the request should not be satisfied.

An extended fraud alert is similar to an initial 90 day alert, except that it lasts for 7 years, and to verify your request a creditor must contact you on the telephone number(s) you provide to the credit reporting agencies.  To place an extended fraud alert, you are required to file a valid police report showing that you have been a victim of identity theft. Most police departments have procedures for filing identity theft complaints.

An active duty alert is available to persons on active military duty and is similar to an initial 90 day alert, except that it lasts 12 months and your name is removed from prescreened offers of credit or insurance for 2 years.

You can file a fraud alert with any of the any of the following:

TransUnion: 1-800-680-7289; ONLINE; Fraud Victim Assistance Division, P.O. Box 6790, Fullerton, CA 92834-6790

Equifax: 1-800-525-6285; ONLINE; P.O. Box 740241, Atlanta, GA 30374-0241

Experian: 1-888-EXPERIAN (397-3742); ONLINE; P.O. Box 9554, Allen, TX 75013

3. File a Police Report.  As a necessary prerequisite to enforcing your rights under the Federal Credit Reporting Act, you need to file a police report. In the event that you come across a police department that does not take identity theft reports, the Federal Trade Commission recommends that you provide the police department this law enforcement letter and a copy of “Remedying the Effects of Identity Theft.”

4. Consider a Credit Report Freeze. If a security freeze law is available in your State, you may want to consider freezing your credit reports. Placing a security freeze on your credit reports limits the ability of third parties to access your reports. This helps prevent identity thieves from opening credit accounts in your name. Ohio has enacted a credit report security freeze law in 2008. See information on Ohio’s Security Freeze Law.  Here is the information and links to the three Credit Reporting Agencies on how to freeze your credit reports: OAGBlog.  Here are other States that have adopted Security Freeze Laws.

5. Close Compromised Accounts. Close any account that you know or suspect has been tampered with. In addition to filing an identity report with the local police department, you need to contact the company with whom you have the account and inform them that the account has been compromised. The FTC provides copies of sample letters you can use in notifying and disputing existing accounts, and for new accounts. It is recommended that you also make use of the FTC Theft Identity Affidavit.

6. File FTC Complaint. File a complaint with the Federal Trade Commission. Here’s a short video showing you how to file such a complaint.

Online FTC Complaint

Helpful links:

Fighting Back Video

FTC Identity Theft

Department of Justice

Identity Theft Resource Center

Privacy Rights Clearinghouse

Identity Theft Prevention and Survival

 

For more information please contact me at: www.candito.com

 

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Need Help Getting Things Done?

I used to take pride in how much information I could keep in my head. I would use mnemonic devices and take courses in increasing memory retention. I did not realize how misguided my efforts were until I read Getting Things Done by David Allen. (See here and here). That book and system changed the way I organize my life. By keeping “open loops” in my head, I was actually crippling my ability to be efficient while increasing stress in my life. See Getting Things Done Facebook Page.

The basic goal in David Allen’s system is to be able to handle and process information as it comes into your life. The problem is that, for most of us, that’s like drinking water from a firehose. You have to be able to master workflow as it comes in. David has developed a basic workflow system that identifies a five stage process. See chart here.

I’m not going to go through the five stage process in great detail in this post. For those of you who are not familiar with David Allen’s system (known as GTD), I highly recommend you buy and read his book and check out his site (David Allen Company). I want to share two programs that I have come to use and rely upon in collecting data and information as it comes in, and then processing and organizing that data into a system that I can work from.

David makes the analogy to psychic RAM (random access memory) for the mental energy that is used when trying to close an open loop. An open loop is an unfinished task or piece of information that hasn’t been adequately addressed or completed. It may be that the idea has not been thought out in order to determine what action needs to be taken, or it is an action that is poorly defined and cannot be taken without additional steps occurring first. David defines an open loop as “anything pulling at your attention that doesn’t belong where it is, the way it is”. Mental energy needs to be devoted to the task at hand to close those open loops and should not be used to try to remember all the necessary details. Those details need to be placed on lists that you will trust to review on a regular basis.

You need to get things out of your head and onto manageable lists that will be regularly reviewed by you as needed. But in order to keep things out of your head, you must trust the system that you are using. If there are any leaks in the system, you will feel insecure about how you are storing information and that information will crawl back into your head.

The first step in mastering workflow is collecting all the things that command your attention (anything personal or professional, big or little, that you think should be different than it currently is and to which you have any level of internal commitment to change). You need a tool to collect this information. David refers to this tool as a “collection bucket”. This can be a low-tech tool such as a physical in basket or paper pad. You can also use an electronic notetaking device, e-mail, or auditory capture device (answering machines, voicemail, or dictating equipment). You should use as few collection buckets as possible. You don’t want to rely on writing notes on napkins, edges of envelopes, or case folders. My preference is for something that I take with me wherever I go which is usually a mobile device such as a cell phone and or iPad.

You want to get everything out your head into the collection bucket as soon as you can if not immediately. And you want to empty the collection bucket on a regular basis by processing and organizing that information into next actions or projects (actions that require more than one next action to complete).

I have found two excellent online programs: one that first helps me collect information as it comes in, and then one to store the results of processing that information in multiple lists that I find useful. I like how these programs are easy use, sync automatically on the Cloud (which makes the information available on all my mobile devices and any computer or laptop that I’m in front of) and best of all; they are FREE.

The program that I use to collect the raw data and information is Upvise (Register for free account here). I only use the notebook  function. I love the user interface available on my cell phone and iPad. The program can be downloaded for any operating system you may need to use. If you are a salesperson, you may like some of the other programs within Upvise. I limit my use of Upvise to capture immediate information that I need to retain. It’s no different for me than taking a physical note to process later.

My favorite program to store and organize the tasks that I need to complete and the projects that are currently underway is Toodledo (Register for free account here). The free program is sufficient for most users, I like a few extras and pay for the premium plan. Toodledo just improved their online interface which is beautiful to work with. It will download and sync to most  programs you may have on Android, Windows 7, iOS or other mobile devices. There is a fairly decent desktop program known as Task Angel that syncs with Toodledo but I have found that I like to work directly online with the Toodledo program from any browser since the interface has been improved.

The nice thing about the GTD method is that you can adapt it to your own needs, style and available tools. I used to prefer low-tech capture tools such as a notebook I would carry with me wherever I went. I now have replaced that with a program that works on the cloud (Upvise). This program works nicely and gives me the ability to print out the collected information making it easier to process and store in my lists contained in Toodledo.

Check it out and have some fun while you’re Getting Things Done.

For more information contact me. www.candito.com

 

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Will There be a Spousal Support Formula in Ohio?

In April of this 2011, the Spousal Support Subcommittee of the Ohio State Bar Association Family Law Committee had reached a final report and recommendation for new legislation designed to create predictability and consistency in establishing compensatory spousal support in all Ohio Courts.  The following formula was proposed:

1. “Regarding the “duration” of a compensatory spousal support award, a rebuttable presumption arises that it should be indefinite in a marital relationship of 25 years or more, and definite in a marital relationship between five and 25 years. For definite durations, the statutory ranges are 30% to 35% of the length of a relationship between five and 10 years; 35% to 40% of the length of a relationship of 10 to 15 years; 40% to 45% of the length of a relationship between 15 and 20 years; and, 45% to 50% of the length of a relationship of 20 to 25 years.

2. Regarding the “amount” of a compensatory spousal support award, the method for computing “is the amount that equals the difference in the income generating capacities of both spouses multiplied by an appropriate percentage selected by the court from the following applicable ranges of percentages:” 25% to 30% for marital relationships between five and 10 years; 30% to 35% for relationships between 10 and 15 years; 35% to 40% for relationships between 15 and 20 years; and 40% to 50% in relationships of 20 years or more.

3. In selecting an appropriate percentage figure within any range for the duration and amount of a compensatory spousal support award, or in exercising discretion to deviate from such ranges, the court may consider a list of factors very similar to the factors currently in the spousal support statute (RC 3105.18).

4. In any marital relationship of less than five years, issues of entitlement, duration and amount regarding any award of compensatory spousal support are completely matters for determination within the broad discretion of the court.”

The Domestic Relations Section of the Ohio Judicial Conference is opposed to this proposal, but some individual Domestic Relation Judges and Magistrates have started using the new guidelines in making their decisions when ordering spousal support. Whether this specific proposal to legislation will become law is a matter to be debated. Such proposals have been made in the past and have not been enacted.

The push to create a state wide formula for calculating spousal support in Domestic Relations cases seems to be picking up steam again. Until such legislation becomes law, the decision on whether to order spousal support, the amount of spousal support, and the duration of spousal support, the Courts must consider the following factors:

“(a) The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under section 3105.171 of the Revised Code;

(b) The relative earning abilities of the parties;

(c) The ages and the physical, mental, and emotional conditions of the parties;

(d) The retirement benefits of the parties;

(e) The duration of the marriage;

(f) The extent to which it would be inappropriate for a party, because that party will be custodian of a minor child of the marriage, to seek employment outside the home;

(g) The standard of living of the parties established during the marriage;

(h) The relative extent of education of the parties;

(i) The relative assets and liabilities of the parties, including but not limited to any court-ordered payments by the parties;

(j) The contribution of each party to the education, training, or earning ability of the other party, including, but not limited to, any party’s contribution to the acquisition of a professional degree of the other  party;

(k) The time and expense necessary for the spouse who is seeking spousal support to acquire education, training, or job experience so that the spouse will be qualified to obtain appropriate employment, provided the education, training, or job experience, and employment is, in fact, sought;

(l) The tax consequences, for each party, of an award of spousal support;

(m) The lost income production capacity of either party that resulted from that party’s marital responsibilities;

(n) Any other factor that the court expressly finds to be relevant and equitable.” O.R.C. 3105.18

For more information contact me.www.candito.com

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Penalities for Operating Vehicle Under the Influence (OVI) in Ohio

The severity of the penalty for a conviction of Operating a Vehicle While Under the Influence (OVI) of Alcohol or Drugs in Ohio will dependent upon the number of previous convictions within a period of time and the level of blood alcohol content (B.A.C.).  A simple O.V.I. is a conviction based upon evidence of impairment and not dependent upon a specific prohibited B.A.C. When a operator tests at the prohibited B.A.C level, this is a per se violation. This means that the it is illegal to operate a vehicle at this level of B.A.C. regardless of other evidence of impairment. All the prosecution has to show is that the operator tested above the prohibited level.

1st Offense in 6 years simple OVI and low B.A.C. test (over .08 but < .17):
Incarceration: Up to 6 months with mandatory 3 days or D.I.P.
Fines: Mandatory $375.00 and up to $1,075.00.
License Suspension: Mandatory 6 months and up to 3 years (Class 5).
Driving Privileges: After 15 days.
Restricted Plates: Optional.
Interlock: Optional.
Immobilization/Forfeiture: No.
Treatment: Optional.

1st Offense in 6 years and either high B.A.C. test (over .17) or a refusal of Breath test within 20 years:
Incarceration: Up to 6 months with mandatory 6 days or 3 days and D.I.P.
Fines: Mandatory $375.00 and up to $1,075.00.
License Suspension: Mandatory 6 months and up to 3 years (Class 5).
Driving Privileges: After 15 days.
Restricted Plates: Required for high tier test.
Interlock: Optional.
Immobilization/Forfeiture: No.
Treatment: Optional.

2nd Offense in 6 years simple OVI and low B.A.C. test (over .08 but < .17):
Incarceration: Up to 6 months with mandatory 10 days or 5 days and 18 days on house arrest with electronic monitoring unit and/or continuous alcohol monitoring.
Fines: Mandatory $525.00 and up to $1,625.00.
License Suspension: Mandatory 1 year and up to 5 years (Class 4).
Driving Privileges: After 45 days.
Restricted Plates: Required.
Interlock: Required if alcohol related/Optional if drug related.
Immobilization/Forfeiture: 90 day imobilization if vehicle owned.
Treatment: Alcohol/Drug assessment and recommended treatment mandatory.

2nd Offense in 6 years and either high B.A.C. test (over .17) or a refusal of Breath test within 20 years:
Incarceration: Up to 6 months with mandatory 20 days or 10 days and 36 days on house arrest with electronic monitoring unit and/or continuous alcohol monitoring.
Fines: Mandatory $525.00 and up to $1,625.00.
License Suspension: Mandatory 1 year and up to 5 years (Class 4).
Driving Privileges: After 45 days.
Restricted Plates: Required.
Interlock: Required if alcohol related/Optional if drug related.
Immobilization/Forfeiture: 90 day imobilization if vehicle owned.
Treatment: Alcohol/Drug assessment and recommended treatment mandatory.

3rd Offense in 6 years simple OVI and low B.A.C. test (over .08 but < .17):
Incarceration: Up to 1 year with mandatory 30 days or 15 days and 55 days on house arrest with electronic monitoring unit and/or continuous alcohol monitoring.
Fines: Mandatory $850.00 and up to $2,750.00.
License Suspension: Mandatory 2 year and up to 10 years (Class 3).
Driving Privileges: After 180 days.
Restricted Plates: Required.
Interlock: Required if alcohol related/Optional if drug related.
Immobilization/Forfeiture: Forfeiture if registered to offender.
Treatment: Alcohol/Drug addiction treatment program mandatory.

3rd Offense in 6 years and either high B.A.C. test (over .17) or a refusal of Breath test within 20 years:
Incarceration: Up to 1 year with mandatory 60 days or 30 days and 110 days on house arrest with electronic monitoring unit and/or continuous alcohol monitoring.
Fines: Mandatory $850.00 and up to $2,750.00.
License Suspension: Mandatory 2 year and up to 10 years (Class 3).
Driving Privileges: After 180 days.
Restricted Plates: Required.
Interlock: Required if alcohol related/Optional if drug related.
Immobilization/Forfeiture: Forfeiture if registered to offender.
Treatment: Alcohol/Drug addiction treatment program mandatory.

4th Offense and beyond in 6 years is a Felony Offense in the State of Ohio. For a complete list of the potential penalties for a felony OVI, please consult with an attorney. See also O.R.C. 4511.19.

CLICK HERE to get your UNOFFICIAL  driving record here: BMV.

For more information contact me.www.candito.com

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Anatomy of a Crime.

The term “dissection” is usually applied to the examination of plants and animals. Some of us had the pleasure of dissecting a frog or baby pig pickled in formaldehyde during high school anatomy. (I remember that the arteries and organs were not as colorful as those in the text book.) But it is also used in relation to written material and to understanding the structure of a sentence. We all had to diagram sentences at some point in elementary or junior high school where we “dissected” the sentence into noun, verb, adverbs and adjectives usually by use of a chart or diagram.

When it comes to understanding criminal law and prosecution of a crime, we need to “dissect” the law. Common understanding is not enough.

For example, we think we understand what it means when someone is charged with committing crime of theft. It means that person stole something, right? But what is “stealing”. Is it stealing if someone puts on item in his pocket with the intent of not paying for it but never leaves the store, and then changes his mind and puts it back? What if he or she leaves the store but then feels remorse and goes back in and puts the item back on the shelf? What if a person picks up a cell phone that she believes to be hers but after leaving the store she realizes that she left her phone at home? Or two year old Brayden picks up a candy bar when his mother wasn’t looking and carries it out of the store? What if a person had an unexpected seizure right before he ran his car off the road and into a ditch. Is this driver guilty of reckless operation or failure to exercise reasonable control of his vehicle?

We know that the prosecution has the burden of proving that the defendant (the person charged with the crime) committed the crime beyond a reasonable doubt. But what is it that the prosecution has to prove? We can only understand this burden if we “dissect” a crime into its elements.

Practically speaking we can identify crimes in two broad categories: Felonies and misdemeanors. Both felonies and misdemeanors come in different degrees. Some felonies are classified as capital offenses for which the death penalty can be imposed. Regardless of the sentence, individual crimes are classified broadly as felonies or misdemeanors by statute.  But if the offense is not specifically classified, it is a felony if imprisonment for more than one year may be imposed as a penalty; and a misdemeanor if imprisonment for not more than one year may be imposed as a penalty. See ORC 2901.02.

The specific crimes are identified by the state in its statute or Code which make up that states laws. In Ohio, crimes are identified in Chapter 29 of the Ohio Revised Code. See ORC 29. The traffic offenses are identified in Chapter 45. See ORC 45. When dissecting the specific crime, whether felonies or misdemeanors, we identify what “elements” must be present for a person to be charged and convicted of a crime. The prosecution has prove that each of the required elements must be present beyond a reasonable doubt for the Defendant to be found guilty.

The number of elements required for a specific offense may vary but there are usually four elements that need to be established:

  1. The act or mission to act.
  2. The mental state required as it relates to EACH element of the crime (it may differ for each of the elements).
  3. The result necessary for the crime (e.g. in a murder or manslaughter offense there must be a death).
  4. The necessary circumstances or condition that may be required (e.g. whether a drug offense occurs within a certain distance from a school).

The first two elements are the basis of all criminal liability in Ohio. If either of those are missing, a person cannot be found guilty of a crime. See ORC 2901.21. Sometimes the required mental state may be referred to as the required degree of culpability for each of the elements of the offense, in other words, degree of “fault”. But there are some offenses that have the purpose of imposing strict criminal liability for the conduct described without referring to culpability. Speeding is such an offense. The prosecutor does not have to prove the driver intended to speed, nor that he or she knew they were speeding nor even that the driver was negligent in speeding. All the prosecutor has to prove is that the driver was speeding. Period. Speeding is the prohibited conduct for which strict liability is imposed.

But even if strict liability is to be imposed, the act or omission to act must be voluntary. Reflexes, convulsions, body movements during unconsciousness or sleep, and body movements that are not otherwise a product of the actor’s volition, are not voluntary acts. ORC 2901.21(D)(2). You should not confuse an involuntary act with an unintentional act. If you turn suddenly and your arm strikes a passerby who was rushing past you, you may not have intended to strike the person, but your act of turning was a voluntary act. If you were at McDonald’s having your morning coffee and had a seizure, the act of spilling hot coffee on your neighbor would not be a voluntary act.

There are four degrees of mental states or culpability. See O.R.C. 2901.22. It is proper to talk about degree of fault. A person can act purposely by intending the act and result. A person can act knowingly if he or she knew the conduct could bring about a result even if he or she didn’t intend it. A person can act recklessly by being grossly indifferent to the consequences of his or her actions even though he or she may not have been aware of what might happen. A person can act negligently by failing to exercise that degree of car that an ordinary an reason person would have exercised under the same of similar conditions. ORC 2901.22 gives the following detailed description of these four mental states:

“(A) A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature.

(B) A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist.

(C) A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist.

(D) A person acts negligently when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that his conduct may cause a certain result or may be of a certain nature. A person is negligent with respect to circumstances when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that such circumstances may exist.”  ORC 2901.22.

If you are charged with a crime, don’t enter of plea of guilty or no contest just because you feel guilty or because you “want to get it over with”. You should discuss this matter with your attorney.

For more information contact me.www.candito.com

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Executor or Administrator? What’s the difference?

What is the difference between the Administrator of an Estate and an Executor of an Estate? It’s a distinction you should be aware of whether you will be the person appointed to take charge of the estate, or if you are the person drafting your Last Will and Testament.

The short answer is that an Executor (Executrix if the person appointed is a female) is the person whom the decedent named in the Will to take charge of the estate. (In probate law, the person who died is referred to as the decedent.) The Executor is responsible for wrapping up the decedent’s affairs and distributing the assets to, or for the benefit of, the persons name in the Will (beneficiaries).

An Administrator (Administratrix if female) is the person in charge of the estate when someone dies without a Last Will and Testament.

Both the Administrator and Executor are subject to the jurisdiction of the Probate Court. Both have similar duties. Both are responsible for identifying, gathering and obtaining values of assets that belong to the deceased person and that will be included in his/her estate. They will be responsible for filing tax returns for the decedent and the estate, for paying estate debts, handling business for the person who died, and distributing the assets to the beneficiaries or the heirs (if there is no will).

Administrators and Executors are fiduciaries. A fiduciary is a person who has been charged (or given) the highest degree of trust and responsibility that can be imposed by law. From the Latin term fiduciarius which literally means a person who is “holding trust”. It is proper to speak of a fiduciary duty or fiduciary relationship to another or for another’s property. Ohio Probate law has a highly technical definition. The Ohio Revised Code defines a fiduciary as ”… any person…appointed by and accountable to the probate court and acting in a fiduciary capacity for any person, or charged with duties in relation to any property, interest, trust, or estate for the benefit of another..” Full text here ORC 2109.01.

So if they are both fiduciaries and are both charged with performing the same duties for the estate, why should I care whether I appoint an Executor in my Last Will and Testament? What is the difference other than an Executor is appointed by the Will and the Administrator is not?

The obvious answer is that you decide who will take charge of your estate. You may love all your children equally, but little Johnny is too easily influenced or intimated by his brothers and sisters to be able to handle any disputes that may arise after your death. Besides, you don’t want to put him in such a stressful position if he still finishing medical school should the grim reaper show up early. And Johnny lives in California now. That would be a long trek to Batavia, Ohio. He would not make a good Executor.

The most significant difference between an Executor and an Administrator is that an Administrator’s authority is limited to what the law provides in the statutes. See ORC 2113. The Executor has all the same legal authority PLUS additional powers that may be granted in the Last Will and Testament.

There are two special powers that can save the estate time and money. The Last Will and Testament can give the Executor the power to sell real estate at private or public sales without having to go through a length “land sales case”.  This is a case that is filed separately from the Probate case and has a life of its own. See ORC 2127. This procedure is cumbersome, time consuming and can be expensive to the estate.

And the Last Will and Testament can allow the Executor to serve without having to post a “bond”.  A bond is required to protect the estate against fraud or negligence. When the decedent names a person he or she trust as Executor, it makes sense to “waive” the requirement of posting the bond. (Although the decedent can choose to leave the requirement for bond in place).  The Administrator must post bond unless otherwise ordered by the Probate Court. ORC 2109.04(A)(1) states that, “(A)(1) Unless otherwise provided by law, every fiduciary, prior to the issuance of the fiduciary’s letters as provided by section 2109.02 of the Revised Code, shall file in the probate court in which the letters are to be issued a bond with a penal sum in such amount as may be fixed by the court, but in no event less than double the probable value of the personal estate and of the annual real estate rentals which will come into such person’s hands as a fiduciary.” (my emphasis added). The Administrator would have to qualify for and obatin a surety is required to guarantee the Administrator’s proper handling of the estate assets, the Administrator has a difficult choice: get a corporate surety bond (which can be expensive, and counts against the Administrator’s credit score which could affect plans for getting a mortgage), get a friend or relative to act as surety, or decline to serve.

Avoiding unnecessary cost, delays and procedures in the administration of your estate is an important consideration in deciding whether to draft a Last Will and Testament. And when drafting your Last Will and Testament, you want to give adequate consideration as to whom to appoint as Executor to take charge of your estate. You can’t take it with you, but you might as well leave as much as you can for those you love.

For more information contact me. www.candito.com

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Do I need a Dissolution or a Divorce?

You have exhausted all options and are now just exhausted. It’s time to call it quits. Now what? Do you file for a divorce or do you petition the court for a dissolution of marriage? What is the difference? Can I choose? Is one a better option than the other? You just want this over with.

In Ohio, a marriage can be terminated by either procedure. If both of parties 1) agree that the marriage should be terminated, 2) have decided on how to divide the marital property and marital debt, 3) agree to the parenting arrangement and the support of minor children, and 4) are willing to sign all the necessary documents and attend a court hearing; then the marriage can be terminated by filing a Petition of Dissolution. See ORC 3105.63. Both parties are referred to as “Petitioners”

If there is any dispute on any of these issues or if either party does not want to terminate the marriage, then Court will not grant a Dissolution of Marriage. In that case, the party wanting to terminate the marriage must file a Complaint for Divorce. A Complaint for Divorce is similar to other lawsuits in that you are “suing” your spouse for a termination of marriage and asking for a legal remedy. See ORC 3105.17. The party filing the Complaint is known as the ‘Plaintiff” and the person who is being served with the Complaint is referred to as the “Defendant”.

There are advantages and disadvantages of each procedure. Emotions run high during a marital breakup, and it is difficult for the parties to deal with each other rationally enough to move through a dissolution of marriage without some help. But if the parties can work through the issues to be decided, the Dissolution of Marriage is a much quicker procedure in which to terminate the marriage. A final hearing can be set between thirty to forty days from the filing of the Petition. Ohio law requires that the final hearing take place within ninety days of the filing of the petition. ORC 3105.64.

But what if you want your spouse out of the house and he refuses to leave. Or the two of you have been separated for some time and you can’t get her to help you financially in paying for the kids’ clothes, school supplies, food and/or school fees. Heck you can’t even get her to pick the kids up at the same time on those rare Fridays she is willing to see them. What then? And the mortgage payment is due Tuesday.

You may need temporary orders while the two of you are working out the details of your separation. Technically, you cannot obtain temporary parenting or support orders during the time you are waiting to finalize a dissolution of marriage. The Court doesn’t get involved until you appear before the judge for your final hearing. A divorce may be necessary in these circumstances even though a separation agreement may be eventually reached. If you need or want exclusive use of the marital residence, or need temporary parenting and child support orders, or spousal support and help paying the household expenses; then you need to invoke the Court’s jurisdiction to request temporary orders. You also may need the Court to grant you a Temporary Restraining Order to prevent your spouse from disposing of marital property, to protect yourself from harassment and/or physical abuse, or to prevent him from taking the children out of the jurisdiction.

You need a cool head to make sure that you understand the implication of your terminating your marriage. It is not a time for you to “go it alone”.

For more information contact me. www.candito.com

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Where are the worksheets?

If you need the bankruptcy worksheet to fill out for the Chapter 7 proceeding, you can find the link on the Bankruptcy page of my website under the photo. Here is the direct Link.  If you are coming in for an Initial Consultation and want to have a heads up on being ready to discuss your case, here is the direct link to the various Intake Form Worksheets. Fill out the Intake Form that corresponds to your legal issue. If you don’t know which Form to use, use the General Intake form. The link is also found on the first page of my website in the lower right sidebar. You can bring the completed form with you, or just fill one out when you come in for your Initial Consultation. I know some you may be coming in during your work hours and having this ready will give us more time to discuss your case.

For more information contact me. www.candito.com

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