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Charlottesville Attorneys Answer Frequently Asked Questions About Personal Injury, Family Law, Estate Planning and Business Law in Virginia

Below are answers to some of the questions the attorneys at Buck, Toscano & Tereskerz encounter most frequently as they advise individuals and businesses in Albemarle County and Central Virginia in the areas of personal injury, family law, estate planning and business law. If you have other questions or need help with a Virginia legal matter, contact our office to speak with one of our experienced Virginia civil lawyers.

Personal Injury

What is a “wrongful death?”

Wrongful death is a legal term describing the situation where a person was killed because of the negligence or wrongful conduct of another. Where the deceased would have had a personal injury claim had he or she only been injured and not killed, Virginia law allows a wrongful death lawsuit to brought for the benefit of surviving family members. A wrongful death lawsuit may be brought by the following individuals, in priority order:

  • Surviving spouse and children or grandchildren
  • Surviving parents and siblings
  • A family member who lived in the household and was dependent on the deceased for support
  • Other family members entitled to inherit from the deceased by law

A wrongful death lawsuit must be brought within two years of the date of death. Damages recoverable include compensation for:

  • Sorrow and mental anguish
  • Solace for the loss of society, companionship, comfort and guidance
  • Loss of income and household services
  • Medical expenses incurred prior to death
  • Funeral expenses

What are punitive damages?

Most legal damages in a personal injury case are compensatory in nature, meaning they are meant to compensate the victim for the harm done. Compensatory damages include medical expenses, lost wages, and pain and suffering, for example. Punitive damages, on the other hand, are awarded to the plaintiff but are meant to punish the defendant for particularly outrageous conduct. The amount of a punitive damage award is often based on the level of the jury’s indignation and the wealth of the defendant. Generally speaking, there must be some statute (law) authorizing the court to award punitive damages. For instance, the wrongful death statute states that “Punitive damages may be recovered for willful or wanton conduct, or such recklessness as evinces a conscious disregard for the safety of others.”

Can the insurance company refuse to pay my claim because they say I was partially at fault in causing the accident?

Virginia is one of only a handful of jurisdictions that retain the doctrine of pure contributory negligence. This means that if you contributed in any way to the accident, then you can be prohibited from recovering any compensation from the other negligent party. Insurance companies know this and go to great lengths to convince you or a jury that you were in some way to blame. Don’t take the insurance company’s word for it, though. Make sure you talk to an experienced personal injury attorney if your claim is rejected. The facts may show that the accident was not your fault and would have occurred regardless of your own actions because of the behavior of the other party, who is truly responsible.

Business Law

Is it better to form a corporation or a partnership?

There are many different types of business entities allowed under Virginia corporate law. Between a corporation and partnership, each has its own advantages and disadvantages. For instance, corporate officers are shielded from liability for many acts or debts of the corporation, but there is double taxation, as both the corporation and then the officers are taxed on business income and profits. In a partnership, the business owners are only taxed once, but they can be held personally liable for debts or torts of the partnership.

A hybrid entity you may want to consider is a limited liability company. An LLC offers the tax benefits of a partnership along with the liability shielding of a corporation. There are other entities you may want to consider as well, and there may still be reasons why a corporation or partnership is best for your particular needs. Talk to an experienced Virginia business and corporate lawyer to find out which corporate structure is best for you.

Estate Planning

What are the requirements for a valid will in Virginia?

Under Virginia law, in order to make a valid will, you must be at least 18 years old and mentally competent to make a will. This means basically that you understand you are making a will and know what property makes up your estate. The will must be in writing (a typed document counts as a writing), and it must be signed and dated by the person making the will (the testator). The will must also be signed by two competent witnesses who witness the testator’s signature, and they must sign the will in the testator’s presence. While it is not necessary to have the will notarized, a notarized will is “self-proving” and can be admitted to the probate court without the need to call the witnesses into court or provide any other evidence that this is the testator’s will.

Virginia also recognizes the validity of holographic wills. A holographic will is one which is written entirely in the testator’s own handwriting and is signed and dated by the testator. A holographic will does not have to be witnessed to be valid.

A will can still be challenged on several grounds, such as if it includes invalid topics, is the product of fraud, duress or undue influence, or if another will is found to be in existence which may supersede the other will.

What is the difference between a will and a living will?

Your will is the legal document you execute to dictate how your property will be distributed after you are gone. The will can also name an executor or personal representative for your estate and appoint a guardian for any minor children. A living will is a legal document used to inform others how you want certain end-of-life decisions to be made on your behalf if you are unable to make them or communicate them. Along with a will, a living will is an important part of a comprehensive estate plan that you should discuss with your estate planning attorney when creating or revising an estate plan.

Family Law

What is required for a valid premarital agreement?

To be valid, a premarital agreement in Virginia must be in writing and signed by both parties, and it must be entered into voluntarily by both. If an agreement is found to be unconscionable (grossly unfair to one side), it will not be enforced unless both parties were provided with a fair and reasonable disclosure of the property and financial obligations of the other, or the party or parties waived their right to disclosure voluntarily and expressly in writing.

A valid premarital or prenuptial agreement can dictate how property will be divided in the event of separation, divorce, death or some other event. The prenup can also dictate the terms of spousal support, require the making of a will or trust to carry out the provisions of the agreement, require the issuance of life insurance and death benefits, and other matters. Some issues, like the right to child custody, cannot be altered by a premarital agreement.

Virginia law also recognizes the validity of marital agreements, which can be entered into at any time during marriage and do the same things that premarital agreements do. Premarital agreements can be beneficial to any couple contemplating marriage, particularly in the case where one party has significantly more wealth than the other, or when one or both parties have been married before and went through a tough divorce.

Does paternity play a role in a divorce proceeding?

It can. If a child’s parentage is not established at the time of a divorce, a determination of paternity may be necessary. A child’s legal father has the legal obligation to provide financial support and may also have the legal right to custody or visitation. Paternity is often established through genetic testing, although other evidence can prove or disprove paternity. A child can also benefit from knowing his or her parentage in many ways, such as knowing family medical history and having a legal right to inherit or access government benefits such as social security or veteran’s benefits.

When parents are unmarried at birth, paternity can be established through a voluntary acknowledgement and filling out a form at the hospital. Otherwise, establishing or challenging paternity may require a legal proceeding at which both parties may be represented by an experienced family law attorney .

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