What is Probate?
What is a Living Will?
HOW CONTRIBUTORY NEGLIGENCE CAN AFFECT YOUR ACCIDENT CASE IN NC
When an accident causes injuries, one of the first thoughts that most people have is about who was to blame. A negligent individual who causes injury to others in an accident is generally responsible for compensating victims under North Carolina law.
If the accident was partly caused by the victim's own negligence, the contributory negligence law of North Carolina could prohibit the victim from receiving any compensation and negatively affect the accident case.
What is Contributory Negligence?
You should be aware of contributory negligence if you reside in North Carolina. Contributory negligence is a legal term that has a huge effect on accident cases where parties get injured in North Carolina, which is why you can learn more about it if you've been hurt.
Contributory negligence is a legal concept used as a defense to suggest that the person who is harmed is also partially to blame, such as in a personal injury claim. The first ‘hurdle' to overcome in personal injury cases is proving fault. Both the defendant and the plaintiff can be at fault when an accident occurs.
Understanding Contributory Negligence in North Carolina
Negligence is a general concept in the law that requires a duty to act and a breach of that duty. In general, negligence is described as the failure — or breach of the duty — to exercise the care that a reasonably prudent individual would use in the same situation.
A victim must meet three conditions to seek damages from a negligent party:
• The person who caused the accident was negligent;
• The negligence caused the accident and the victim's injuries; and
• The victim suffered measurable injuries and damages as a result of the negligence.
A victim must prove all three of these elements to obtain compensation.
In North Carolina, however, showing the three conditions is not enough to allow the victim to compensation. In accident situations, the state follows a concept known as strict contributory negligence.
If a victim's own negligence contributed to the accident in some way, the victim is not entitled to any compensation under the strict (or pure) contributory negligence law. Even if the negligent party is 99 percent at fault and the victim is 1% at fault, the victim is not entitled to any compensation from the at-fault party. It's a harsh law with often horrific consequences.
Other states have a provision known as comparative negligence, in which a contributory negligent victim may be entitled to recover any portion of damages for their injuries.
Are there any exceptions to the Strict Contributory Negligence rule in NC?
Contributory negligence can be a major hurdle in personal injury cases, and it can affect your accident case in North Carolina. The "last clear chance doctrine" is one contributory negligence defense. For instance, if the plaintiff driver is at risk and the defendant driver should have taken action to prevent harming the plaintiff (for example, by hitting the brakes), but does not, the plaintiff can still recover under this doctrine, even if his own negligence put him in risk.
This doctrine allows a contributorily negligent plaintiff to benefit from a defendant if the plaintiff may show that the defendant had the last clear opportunity to prevent the injury-causing event and did not.
Willful and wanton conduct, which is beyond normal negligence but not quite intentional, is also a defense to the harsh law of contributory negligence. Driving while impaired is the most common example.
Changing the Contributory Negligence Law
Though efforts to reform North Carolina's contributory negligence law have been made in the past, these proposals have failed to pass the legislature at the moment. Since insurance firms in North Carolina will have to pay out more in claims if the state implemented a comparative negligence rule, the insurance industry's resistance to reforms is one of the main roadblocks to changing the law. Insurance companies are always looking out for ways to mitigate settlement amounts to maximize profits. Other states, on the other hand, have been able to enact more fair laws that benefit injured people, and North Carolina should also be able to do the same.
Consult with a North Carolina Personal Injury Attorney
If you or a loved one has been hurt in a North Carolina personal injury accident, you must seek legal representation from a North Carolina personal injury lawyer. It can create an effect on the outcome of your case if you have an experienced and competent North Carolina personal injury attorney by your side who is familiar with the state's contributory negligence laws.
Creating Wills & Living Wills to Avoid Unnecessary Stress for Your Family
Life is very unpredictable. The ongoing coronavirus pandemic has highlighted the importance of having a proper estate plan in place and creating wills. Estate planning is often misunderstood as being only for the wealthy, when in fact, it is essential for everyone. In the process, determining who will inherit your estate is a major decision and an essential part of life planning.
Efficient estate planning, such as drafting a Will, protects families while also keeping the heirs from paying too much in taxes. You won't be able to pick who gets what if you don't have a Will in place. Your family would have to deal with unnecessary tension and headaches if you don't have a Will or Living Will.
What is a Will and why is it important?
A Will is a legal document that helps you to determine who gets what assets and property after you pass away. Putting off writing a will in North Carolina and other states can be problematic. Dying without a will creates unwanted legal headaches for your remaining family members, and it may result in your assets and property going to someone you would not have given them to otherwise. Intestate refers to a death that happens without a will. It means the court can designate an administrator to divide your bank accounts, real estate, household goods, jewelry, and other properties following North Carolina probate law's criteria.
How does the State handle the estate in the absence of a Will?
If you have a will, you can appoint an executor to take care of the administration of your assets. The property of the deceased's estate is allocated according to the North Carolina Intestate Succession Act if there is no will to steer the distribution of assets. The Office of the Clerk of Superior Court in the county where the deceased person lived before death manages the probate process. The probate judge is the Clerk of Superior Court. The probate court may appoint an estate administrator to inventory all assets, pay all debts and taxes, manage funeral expenses, and distribute any remaining assets according to the law.
This law only applies to assets that may have passed through a will. Some assets, such as life insurance plans or retirement accounts with specified beneficiaries, are exempt from probate unless they are allocated according to contractual terms. Life insurance, retirement plans, jointly owned property with rights of survivorship, shares with designated beneficiaries, and Pay on Death or Transfer on Death accounts are several examples of non-probate assets not generally regulated by intestate succession laws.
What is a Living Will?
An Advance Directive for a Natural Death is another name for a Living Will. In layman's terms, it's a document that defines the form of treatment care you want if you're diagnosed with a life-threatening illness.
The following are the key medical conditions that make a Living Will effective:
1. You acquire an incurable or permanent medical condition that will cause you to die in a very short period;
2. You become unconscious and your health care providers decide that you will never recover consciousness to a high degree of medical certainty;
3. You have advanced dementia or another condition that causes a significant loss of cognitive capacity, and the health care providers conclude that this loss is not reversible to a high degree of medical certainty.
If you have one of the medical conditions mentioned above, you will specify in your Living Will if you want your life extended.
Another significant feature of your Living Will is the ability to specify in writing whether you want artificial hydration or nutrition to be kept in place whether it will help you live longer. Family members can find it difficult to make this decision for you. It's best if you write down your desires while you're still able to make choices for yourself. A Living Will removes uncertainty, which can help avoid family tensions during an otherwise difficult period. This might be something that can be postponed, but life is unpredictable, and you never know when these documents will be needed.
Get a Properly Drafted Will in North Carolina
By now you have an idea that without a will or a living Will, you have absolutely no control over where your probate property goes after you die. You may be unintentionally leaving property to people with whom you don't have a close relationship or to family members that are not in need. If your heirs don't get along, you may be leaving a headache instead of inheritance. If they can't agree on what to do with the land, court proceedings to sell and divide assets may be required. If you don't have a will, you risk leaving a family member in need.
Everyone should have a well-drafted and executed will in place so that the state of North Carolina does not have to make these critical decisions for them. If you're looking for an estate planning attorney in North Carolina, talk with one of our experienced estate planning lawyers about writing a Will.
