CBA Blog

My employer is ignoring our employment contract, what can I do?

By Elizabeth S. Loring, Lawyer Referral Service Panelist

That depends primarily on the terms of the employment contract and what your employer is doing to violate it.  Again, you should seek the advice of an employment attorney. They will give you the advice you need to understand whether a breach of the contract has occurred, your rights and responsibilities under the employment contract, and whether challenging your employer on those rights is advisable.

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What is allowed in an employment contract (or what is not allowed)?

By Elizabeth S. Loring, Lawyer Referral Service Panelist

There is very little that is not allowed to be included in an employment contract in Ohio.  That is why it is very important to have an attorney look at your employment contract to make sure you’re entering into an agreement that is legal, as beneficial for you as possible, and protects you in the event things do not work out as you hoped.  It’s much easier – and thus typically less expensive – to protect yourself against potential problems before you enter into an employment contract than it is to correct issues after you sign it.

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If I get fired is my non-compete still enforceable?

By Elizabeth S. Loring, Lawyer Referral Service Panelist

Every non-compete agreement is different, so you really don’t know unless you seek the advice of an attorney.  In Ohio, the fact that your employer terminated you does not automatically mean that the non-compete is invalid.   This is why it’s very important to talk to somebody who understands the legality of non-compete agreements and can offer sound advice about what your rights and responsibilities are going forward.  Ideally, you should consult an attorney before signing the non-compete.  Often the terms are negotiable, but even if they are not, you should know what you are getting yourself into.  Whether you are terminated or you quit, it is especially important to have a lawyer review your non-compete prior to applying for employment that could violate the agreement.  A good employment lawyer will tell you what you can and cannot do under the agreement, and might be able negotiate your way out of the non-compete or minimize the restrictions.

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Should an attorney review my severance package?

By Elizabeth S. Loring, Lawyer Referral Service Panelist

Yes.  A severance agreement is a legally binding contract, and you should get the advice of an attorney before you sign one.  Most severance packages give you a monetary amount in exchange for your agreement not to take any legal action against your former employer.  Some also impose additional restrictions on your ability to work for a competitive company or hire their current employees.  Also, most severance agreements do not adequately address concerns you may have regarding what the company will respond to reference requests or whether you will be entitled to unemployment compensation.

Because you are giving up your right to take any legal action, it is important to consult an attorney to see if you have claims that might be worth more than what the company is offering.  Even if there are no potential claims, or the company is not willing to increase the severance, it is worth seeing an attorney to make sure the company does not tell potential employers things that may interfere with your job search or your unemployment compensation.

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Should I have an attorney look over my employment contract?

by Elizabeth S. Loring, Lawyer Referral Service Panelist

Absolutely.  An employment contract is going to affect one of the most important parts of your life.  You will need to understand the provisions, which could include what constitutes termination for cause and not for cause – that is, the reasons the company would be allowed to fire or you will be allowed to resign.  Other concerns are whether notice provisions are adequate, possible severance and benefits continuation for a no-cause dismissal, and non-compete clauses, among others.  To make sure you’re getting the best possible deal and you know what to expect if the relationship terminates, it is essential to consult an attorney.

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What kind of property goes into a trust?

by Thomas D. Richards, Lawyer Referral Service Panelist

This question is addressed assuming we are preparing a simple Living Trust. You don’t have to be a millionaire to need a trust. If you own a home you likely will want to put it into a trust. Most people’s largest and most valuable assets are their real estate holdings, which includes their home. Since real estate usually causes the most problems in Probate Court, it usually becomes the focus and purpose of the trust in the typical situation. As such, real estate assets would be the first assets we would look at transferring into the trust of the people we are advising. Other types of assets to consider for a trust include the following: motor vehicles, bank accounts, boats, stock accounts, money market accounts, mutual funds, bonds, farm equipment, business interests, LLC, savings, certificates of deposit, checking, artwork, coin collections, antiques, jewelry, all contents of the home, mineral and mining interests, and others.

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Is there more than one kind of trust?

by Thomas D. Richards, Lawyer Referral Service Panelist

There are possibly 100 or more types of trusts and variations of them.  This blog and others in this series are primarily focused on Revocable Living Trusts, which allow you to avoid probate, and organize your estate assets into the gifting scheme that you want to be carried out for you after you pass away.  Some of the other types of trusts include irrevocable trusts called income trusts, annuity trusts, life insurance trusts, charitable trusts, and disabled child trusts.  These types of trusts are very specialized and are not for everyone.  Your financial advisor and attorney can determine which of these trusts would be most beneficial to you. Trusts are designed to help most people, but are not for everyone. Most people can benefit from a simple living trust.  The living trust is applicable to most people who have assets of more than approximately $50,000.  Most people with a job and a home would have assets valued at more than $50,000.

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I already have a will. Why should I consider a trust?

by Thomas D. Richards, Lawyer Referral Service Panelist

A trust solves a common problem that stems from the goal to avoid Probate Court. If you pass away testate, this means that you at least signed a will and made an attempt at some sort of planning for your estate. The problem with just having a last will is that it will take your assets into probate.  I like to call the last will a “one way ticket to probate.” A will is better than no will at all, but you still have to deal with Probate Court if you just have a will.  You can avoid the entire Probate Court process if you take time to consult an attorney and discuss preparing a simple Living Trust.

The trust as a tool to avoid probate is relatively inexpensive compared to the fees and costs your family will pay to take your estate through probate. The costs of probate with executor fees and attorney fees can run between 5 percent to 10 percent or more of the value of your estate.  On a $100,000 estate(add up your home value, cars, bank accounts), the probate could be anywhere from $5,000 up to $10,000 or more for just the attorney and executor fees, not counting the court costs, filing fees, and expenses.  This is money that your family will not receive out of your estate assets.  You want your family to have all of your estate, so don’t waste your assets on Probate Court attorney fees, executor fees, and court costs and expenses.

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What happens if I do not have a will or trust?

by Thomas D. Richards, Lawyer Referral Service Panelist

Most people will need a trust if for no other reason than to avoid the Probate Court process in the county where they live and pass away in Ohio.  Each state creates its own probate laws and Probate Court jurisdictions.  If you pass away in Ohio without a trust or will, here is what could happen to your estate.

Passing away without a will is called intestate.  There is a statute in Ohio that dictates how your assets will be divided and who will get part or all of your estate.  This may not be the way you wanted your assets to be split, but without a will, the state of Ohio will decided who gets your assets and how much each person gets.  Most likely this gifting scheme will not be how you would have distributed your assets.  There may even be people who get you assets whom you did not want to get any of your estate.  But without having made some sort of plan for your estate, your wishes are ignored and Ohio will decide how to divide your estate.  Your estate includes your home, bank accounts, retirement funds, stock accounts, bonds, savings, checking, and most other assets that do not already have a designated beneficiary such as life insurance,IRA,401K, annuity, etc.

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What is a trust?

by Thomas D. Richards, Lawyer Referral Service Panelist

Ohio law allows for each person to set up a document to safe-keep their assets. This is called a “trust.”  The simplest form of a trust is a “revocable living trust.” Revocable just means that it can be “changed” during the person’s lifetime. The person who is creating the trust to put his or her assets in is called the “grantor” or “trustor.”  The grantor can put his or her house in the trust, cars, bank accounts, and just about anything of value with some exceptions.

The safe-keeping part is a unique part of a trust that requires the grantor to appoint a “trustee.” The trustee is charged by law with very special duties to oversee the assets in the trust and protect them.  The trustee can be held personally liable for losing any of the assets of the trust that he/she has been appointed to protect. The trust will stay open even after the grantor dies, so it is good to know that someone is watching over your assets after you die.

Another unique part of a trust is that it lists who gets the assets that you put into the trust. These “beneficiaries” are the people or organizations who will eventually receive the assets from the trust as gifts.  Beneficiaries can be relatives, friends, neighbors, a church, charity, school, college, etc. You can name multiple beneficiaries in your trust who will each take a certain portion of your trust assets after your death. You can specify set dollar amounts for these gifts or percentages.  The trustee you appoint will ensure that the assets go to the correct beneficiaries in the amounts that you specified while you were alive.

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