Benefits Of Estate Planning And Wills
By John Shreves
By design or default, everyone has an estate plan. If you do not have a valid will at the date of your death, and/or if you fail to designate the beneficiaries in your life insurance policies and/or retirement plans (or if these designations are invalid), the assets that otherwise would pass at your death to a designated legatee or beneficiary will pass pursuant to the Louisiana laws of intestacy. This estate plan by default may, but in many cases does not, transfer your assets at your death to those to whom you would want to receive the property from your estate.
Clearly, an estate plan by design is more desirable. In this regard, the most important element of an estate plan by design is the execution of a valid will. Also, the designation of a proper beneficiary under your life insurance policies and retirement plans ensures the transfer of these assets to the intended persons. Furthermore, for larger estates, the estate plan should implement strategies that minimize or eliminate any federal and/or state estate taxes, which can, in some cases, be quite severe.
Estate plans should be established only after consultation with a qualified estate planner. The federal and state laws in the areas of wills, trusts, descent and distribution, and taxation change frequently; therefore, proper advice from an experienced estate planner is essential to creation of a proper estate plan. For example, numerous revisions to the Louisiana laws of wills and successions became effective July 1, 1999. Also, in the last few years, the Louisiana laws of forced heirship underwent a major overhaul. The trust laws in Louisiana have seen several changes recently and more are expected in the future, as are changes in the area of tutorships (guardianships for minors) and curatorships (for incompetent people)
John F. Shreves is a partner in Simon, Peragine, Smith & Redfearn, L.L.P. He is a Board Certified Tax Attorney and a Board Certified Estate Planning and Administration Specialist. Mr. Shreves is also an adjunct professor of law at Loyola University School of Law in New Orleans. Mr. Shreves holds a B.S. and J.D. degree from the University of South Dakota, an M.A.T. degree from Augustana College and an LL.M. in Taxation from the University of Florida, Holland Law Center in Gainesville. He is a member of the New Orleans Estate Planning Council, New Orleans Bar Association, and American Bar Association Section of Taxation, Trust and Probate, and Business Law. Mr. Shreves practices in the areas of estate planning, trusts, successions, taxation, business planning and transactions, franchise and general business law. He can be contacted at (504) 569-2995 or jshreves@spsr-law.com.
FIFTH CIRCUIT COURT OF APPEALS Adopts Exposure Theory
In Guaranty National Ins. Co. v. Azrock Industries, Inc., the United States Fifth Circuit Court of Appeals ruled that a progressive disease occurs when someone is initially exposed to the injury-causing agent, overturning the rule that a disease occurs when it manifests itself.
Azrock was sued for personal injury and property damage due to exposure to asbestos the company manufactured for 50 years.
The Fifth Circuit Court noted that the “exposure” theory was adapted as an Erie guess under both Texas and Louisiana law.
Martinez named among CityBusiness’ Women of the Year
Judy Perry Martinez, a partner with Simon, Peragine, Smith & Redfearn, L.L.P., was recently named one of the area’s outstanding Women of the Year by New Orleans CityBusiness. CityBusiness recognized Martinez’s pro bono work, professional accomplishments and community service. While Martinez handles a variety of cases from insurance defense to employment law, she cited the firm’s commitment to public service as most rewarding.
Martinez was honored for her involvement with the Louisiana State and American Bar associations. She serves as chairperson of the ABA’s Commission on Domestic Violence and is a member of the ABA’s Commission on Women in the Profession. She is a former member of the ABA’s Board of Governor’s Executive Committee, and Executive Committee chair and secretary of the ABA’s Young Lawyers Division.
Martinez also was quoted in “Careers on Trial: Lawyers discuss what keeps them in the practice, what drives them out,” an article in CityBusiness’ recent legal supplement. While other attorneys cited grievances that contribute to high turnover within their firms, Martinez affirmed that is not the case at Simon, Peragine, Smith & Redfearn, L.L.P. Instead, the firm encourages attorneys to pursue pro bono work and involvement in professional organizations. This, in turn, fosters a healthy, productive environment and makes the practice more fulfilling for its attorneys.
Her many awards and acknowledgments are testaments of her commitment to public service. Martinez lectures and publishes on minority and women’s issues and access to justice. She has been a member of the Board of Directors for the Louisiana Endowment for the Humanities, Planned Parenthood and St. Mary’s Dominican High School among others.
Twice the recipient of the Louisiana State Bar Association President’s Award, Martinez also was awarded the Outstanding Young Lawyer for the State of Louisiana Award and the Allies for Justice Award from the National Gay and Lesbian Law Association.
To learn more about Martinez’s accomplishments, visit her biography on the Simon, Peragine, Smith & Redfearn, L.L.P. website, www.spsr-law.com.
SPSR Hires 2 Associates, Names New Partner
Simon, Peragine, Smith & Redfearn, L.L.P. welcomes associates Douglas R. Kinler and Michael D. Harold to the firm and congratulates Douglas W. Redfearn on his appointment to partner.
Kinler received his Juris Doctor from Loyola University in 1995 and is admitted to practice in all federal and state courts in Louisiana. Kinler also is a member of the Louisiana State Bar and American Bar associations.
A founding member and guitarist for The Bucktown All-Stars band, Kinler adds an entertaining flare to the firm. The Bucktown All-Stars play for many charitable and civic causes in the New Orleans area such as Children’s Hospital, the Archdiocese of New Orleans, New Orleans and Jefferson Parish police, the Susan Komen Foundation and A Child’s Wish Foundation.
Harold earned his Juris Doctor from Louisiana State University in 1990.
Effective Jan. 1, 2000, the partners of Simon, Peragine, Smith & Redfearn, L.L.P. voted Douglas W. Redfearn to partner. Redfearn continues to practice primarily in general civil litigation, insurance defense and oil and gas. He received his Juris Doctor from Tulane Law School in 1991.
The knowledge and skills of these attorneys will help the firm continue to grow and expand practice areas. For more detailed information about Kinler, Redfearn and Harold, check out their biographies on the Simon, Peragine, Smith & Redfearn, L.L.P. website, www.spsr-law.com.
All Eyes On Proposed New OSHA Guidelines
Businesses where workers are subject to work-related musculoskeletal disorders (WMSD), or perform manufacturing and manual handling jobs, may soon become subject to new OSHA guidelines. The proposal is designed to protect workers in general industry from injuries and health problems caused by overexertion, repetitive motions and maintaining the same position for long periods of time. While workers that rely on computers are subject to the standards, those in agriculture, construction and maritime operations are not.
The proposed guidelines require businesses where these problems exist to implement ergonomic programs, or programs where the workplace is designed to accommodate the worker. Health problems commonly associated with computer work, including carpel tunnel syndrome, muscular strains, sciatica, tendonitis, low-back pain and other health problems, contribute to WMSDs and are the subject of these standards. The guidelines would require employers to provide workers with modified work stations, adjustable chairs, timed work breaks and equipment that decrease the need to lift and carry materials.
The regulations would amend 29 C.F.R. §1910 and include a list of jobs typically associated with manufacturing and manual handling jobs. However, each job would be considered on the basis of its actual physical work activities and conditions under the proposed standards. Since the standards are job-based, they would apply only to specific jobs and not to the entire workplace. It is estimated that 1.9 million sites would be affected and more than 27 million workers would be subject to the standard.
According to the U.S. Bureau of Labor Statistics, more than one-third of all lost workday injuries and illnesses are the result of WMSDs, yet OSHA believes these injuries are preventable. Estimates reveal that WMSDs cost companies as much as $60 billion nationwide, with carpel tunnel syndrome causing more lost workdays than any other workplace injury. The estimated costs of OSHA’s proposed ergonomics regulations range from OSHA’s low national estimate of $20 billion to some single industry costs of $18 billion to $30 billion. However, OSHA estimates that costs to businesses to correct or prevent these problems will be minimal, with the average cost per employee work station around $150 per year.
If promulgated, the proposed standards will require all qualified employers to implement an ergonomic program including management leadership, employee participation, and hazard information and reporting, even if no MSD has occurred on the jobs. If a covered MSD or if persistent MSD symptoms are reported, then management must implement other program elements.
Management leadership of ergonomics programs requires methods for employees to report MSD signs and symptoms, provide responses to reports and be involved in implementing, developing, and evaluating elements of the program. As with other workplace standards, an employer must not have practices or policies that discourage employees from participating in the program or from reporting MSD signs or symptoms. The standards would require employers to identify a person to receive and respond to employee reports as well as take action to comply with the standards.
If problem jobs are identified, employees must use a combination of engineering and administrative and/or workplace practice controls to eliminate or materially reduce MSD hazards. Training also must be provided at no cost to employees at least every three years so they are aware of MSD hazards and measures for eliminating hazards. The training must involve employees and supervisors in problem jobs and persons involved in setting up and managing the ergonomics program. Where appropriate under the standard, MSD management also will require that an employer provide employees with prompt access to a health care professional for evaluation management and follow-up.
The guidelines do provide a grandfather clause and a Quick Fix for problem jobs without requiring the implementation of a full ergonomics program. The grandfather clause credits businesses that already have an effective ergonomics program in place that meets OSHA standards. The Quick Fix entails:
- promptly making available the MSD management required
- consulting with employees about job difficulties
- getting employee recommendations for eliminating the MSD hazard
- putting in Quick Fix controls within 90 days after the MSD is identified
- keeping a record of Quick Fix controls and
- providing the hazard information to employees in the problem job within a 90-day period.
In the event that the Quick Fix does not work, or if another covered MSD is reported on that particular job within 36 months, the employer is required to set up a complete ergonomics program.
A list of jobs typically classified for this proposal as well as those not typically classified is available. For more information about the proposed guidelines, visit OSHA’s website at http://www.osha.gov.
SPSR Sponsors Make-A-Wish Foundation, WWNO Radio
We at Simon, Peragine, Smith & Redfearn, L.L.P. have realized our responsibility to the community by adopting a school, donating our time and services to nonprofit organizations, and even designating one week out of the year to raise money for the United Way. Now we’ve taken that support a step further by sponsoring a TV public service announcement for the Make-A-Wish Foundation of Louisiana and underwriting National Public Radio on WWNO.
In 1996, the Make-A-Wish Foundation of Louisiana began granting wishes to children ages 2 1/2 - 18 years-old who are terminally ill or have life-threatening illnesses. Since then, more than 250 wishes have been granted to Louisiana children. The foundation is volunteer-driven and 80 percent of every dollar donated to Make-A-Wish Foundation of Louisiana goes directly to wish granting for children in Louisiana — that’s more than the national average. While the average wish costs $5,000, wishes can range from hugging puppies to going to Walt Disney World.
The Make-A-Wish Foundation of Louisiana is gearing up for its Adopt-A-Wish program, a campaign to provide a venue for individuals, businesses, organizations, clubs or groups of friends to make the wishes of Louisiana’s terminally-ill children come true. The public service announcement sponsored by Simon, Peragine, Smith & Redfearn, L.L.P. will help the foundation reach hundreds of businesses.
To find out more about the Make-A-Wish Foundation of Louisiana, visit the website at www.la-wish.org or call 504-314-WISH locally or 888-677-9474.