Clients frequently ask if they need a trust. Most do not. There are cheaper and simpler ways if the goal is to avoid going through probate court, such as survivorship deeds, transfer on death affidavits and payable on death accounts. Trusts do allow people to control their assets beyond their date of death, unlike a last will and testament. Payments may be deferred for minor children until they are mature enough to handle assets, or they may be paid out in increments rather than in a lump sum. Conditions also may be attached to receiving assets, such as completing an education. Other reasons for considering trusts are addressed in "special needs trusts" and "spendthrift trusts." "Special needs trusts" often are set up by parents of children with disabilities that prevent them from having assets in their names. Often those assets would have to be spent down before a person could receive government assistance, such as Social Security Disability, related medical coverage and even Section 8 housing eligibility. The special needs trust allows the trustee, usually a trusted relative, to provide extra help to the disabled child without affecting the child's eligibility for government assistance. The trust can continue after the death of the parents, which often is a concern. "Spendthrift trusts" can be set up to protect assets of a child or other person when there is a concern that the beneficiary cannot handle assets for various reasons such as mental health, addiction or just bad judgment. The trust can be used to help the beneficiary in many ways, but the trust provides that no creditor of the beneficiary can reach the trust funds and that the beneficiary cannot assign part of the trust funds to creditors. These trusts are worth considering when clients have family members with various issues and they need to protect assets that might otherwise be theirs. ... See more
I recently attended a legal seminar on the case of Miranda v. Arizona, the case in which the U.S. Supreme Court held that persons in custody must be advised of his or her 5th Amendment right against self-incrimination and 6th Amendment right to counsel before being interrogated by the police. This was of particular interest to me because the U.S. Supreme Court case of Berkemer v. McCarty applied Miranda rights to persons arrested for misdemeanors. This involved my father, Harry J. Berkemer, then Franklin County Sheriff, and was appealed by my friend, William Meeks, an excellent defense attorney. The Founding Fathers added the Bill of RIghts to the U.S. Constitution to protect citizens from government abuse. Forced confessions were common before that time. People find it surprising that suspects would make a false confession or make false incriminating statements. In fact, this is not unusual. People who are held in custody and intensively interrogated for long periods sometimes confess just to end the pressure of interrogation. Since the development of the science of DNA, nearly one in four "DNA exonerations" involves convicted defendants who made false confessions or false incriminating statements, despite their innocence. It angers me when people complain about defense attorneys who assert the constitutional rights of their clients and judges who uphold those rights set up by the Founding Fathers. This is an essential part of our criminal justice system. In reality, many top defense attorneys and judges started their careers as prosecuting attorneys. Justice requires prosecutors and defense attorney presenting their best cases. My father served in law enforement for 37 years. I served as a prosecuting attorney and a criminal defense attorney early in my career. Other than the disadvantages experienced by the poor, I believe that our criminal justice system functions well in protecting individual rights while convicting the guilty. ... See more
http://www2.mda.org/goto/fberkemer0523 I have volunteered to raise funds for MDA, which fights muscular dystrophy, a terrible disease, especially for chidren, and also ALS (Lou Gehrig's Disease) to which I have lost several friends. If you are interested in donating you can go to the site above and use a card or send a check. Thanks. ... See more
MDA Lock-Up - Together, we are uniting to bring strength, independence and life to kids and adults living with muscular dystrophy, ALS and related life-threatening diseases.
Appeared on Six on Your Side Ask the Attorney yesterday with Columbus Bar Association. Callers were very appreciative of the chance to get some free legal advice.
People should know about "subrogation." That is the right your health insurance company has in its contract to recover back from third parties any medical bills that they pay for you for injuries caused by a third party. The problem is, they do nothing to recover from those third parties. They just wait for you to hire an attorney to recover your damages and then they want their money from your settlement. Most of the insurance companies will give insureds some reduction for having to pay an attorney to recover their funds. Blue Cross Blue Shield will not. They want every dollar back that they paid out, even if the client has to pay for the recovery. If you have a weak claim that might be worth $100,000 with $30,000 in medical expenses, they want their $30,000 even if you can only settle for $50,000, and their subrogation comes before attorney fees and costs of litigation. That leaves nothing for the client. Only insurance companies have it this good. ... See more
The Columbus Dispatch had an article in the Sunday edition about one of my favorite subjects, student loan debt. Collectors who contract with the government and private lenders add on collection fees of up to 60% of the balance to collect these loans. Only in student loan collection is that type of legalized extortion allowed. The Dispatch investigation showed some loan collectors improperly adding excessive interest to the amount of judgments. Some loans already paid off were filed as lawsuits. Sadly, the Ohio Attorney General's office states it was not aware of some of these practices, but it is that office that contracts with private attorneys to collect many of these loans, some of whom no doubt are political contributors. The message is that anyone who is being sued for a student loan or who has had a judgment taken against him or her needs to talk to an attorney about legal options. The claimed amount of your loan may not be correct. ... See more
Six On Your Side Ask The Attorney appearance. Everyone who called was courteous and appreciated the free advice.
This is Michael Edgington. A fifteen year old student from Upper Arlington who is a lot taller than I am already. I spent part of the day with him last week showing him some of the things we do in the office followed up by a trip to the courthouse. He has an interest in studying law in the future. I hope this gave him some perspective on the profession. I wish they had things like this when I was in school. ... See more
I recently won a food stamp hearing against ODJFS. I never knew any attorney had to have a food stamp hearing before. It got me thinking of how many courts and hearing officers I have litigated cases before. Here is what I came up with: US Court of Appeals, 6th Circuit (handicap discrimination-won) US District Court, Southern District of Ohio US Bankruptcy Court, Southern District of Ohio Franklin County Court of Appeals, 10th District Franklin County Common Pleas Court, civil and criminal Franklin County Common Pleas Court, Domestic Division Franklin County Common Pleas Court, Juvenile Division Franklin County Probate Court Franklin County Municipal Court, civil and criminal Ohio Court of Claims Ohio State Employee Relations Board Ohio Bureau of Unemployment Ohio BWC Ohio DJFS Social Security Administration Franklin County Board of Zoning Appeals Columbus Civil Service Commission Ohio Bureau of Motor Vehicles This is primarily Franklin County, but I have appeared in many other county courts around the state as well. I have had a wide range of experience over the years. ... See more
I have mentioned before on this site my disdain for the manner in which student loans are marketed by colleges and banks working together. There is almost no hope for relief from these loans, other than by showing a hardship, such as qualifying for Social Security Disability. There is another possible defense to these loans that have gone into default. If a lender issues a 1099 claiming that the loan was written off as a bad debt, triggering income tax liability for the borrower, that may bar the lender from coming back later to attempt to collect the balance due, and may allow the borrower to file for bankruptcy. There are some court rulings supporting this. Anyone receiving a 1099 for a written off loan may want to take a look at this. ... See more