Frequently Asked Questions
Motor Vehicle Accidents – General Questions
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I was in a motor vehicle accident. What should I do?
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Report the accident to the police.
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Get the name, address, drivers license number, insurance information and license plate number of the other driver(s) involved in the accident
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Get the names and phone numbers of all witnesses.
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Report the accident to your insurance agent.
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See a doctor if injured.
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Take photographs of the property damage (to the vehicle) and all visible injuries (bruises, cuts, scrapes, etc.).
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Seriously consider talking to a lawyer before you talk to an insurance adjuster, including an adjuster for your own insurance company. An initial consultation with an attorney from Thomas B. Schway and Associates is free of charge and does not commit you to hiring an attorney.
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Who pays for the damage to my car?
Damage to your vehicle, or “property damage”, should generally be paid by the party who is at fault for the accident. Sometimes, the other party’s insurer will voluntarily pay for the damage to the car where the liability (fault) for the accident is clear. Other times, however, it may be necessary to make a claim with your own insurance company through your collision coverage. Generally, your insurance company will try to recover your deductible from the at-fault driver’s insurance company. Thomas B. Schway and Associates will represent our personal injury clients regarding their property damage at no additional charge.
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Someone from the other driver’s insurance company wants to take my statement. Should I talk to them?
No. Keep in mind that insurance companies make their money from the difference between premiums collected and claims paid. They have an incentive to pay out as little as possible on a claim.
An insurance adjuster for the at-fault driver has no obligation or duty to inform you of your rights. They have the benefit of consulting with retained attorneys for the insurance company.
If the other driver’s insurance company wants to take a recorded statement, you should consider contacting an experienced attorney if you have not previously done so. An initial consultation with an attorney from Thomas B. Schway and Associates is free of charge and does not commit you to hiring an attorney.
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I’ve heard that Minnesota is a “no-fault” state. Does that mean it doesn’t matter whose fault the accident was?
No. Liability, or fault, is still a very important factor in motor vehicle accidents. In order to bring a claim for other benefits caused by the accident over and above the benefits provided by no-fault insurance, such as pain and suffering, the other party must be at fault for the accident. “No-Fault” insurance is a specific type of insurance coverage that is dealt with in the “Motor Vehicle Accidents – No-Fault Benefits” section of these FAQs.
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I was hurt and need to go to the doctor. Who pays for my medical bills?
Generally, reasonable and necessary medical treatment related to an accident will be paid by your car insurance company under “No-Fault” insurance. Please see the “Motor Vehicle Accidents – No-Fault Benefits” section of these FAQs for more information about No-Fault insurance.
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I have missed work as a result of the accident. Who pays for my lost wages?
Generally, wage loss incurred as a result of injuries sustained in a motor vehicle accident will be paid by your car insurance company under “No-Fault” insurance. Please see the “Motor Vehicle Accidents – No-Fault Benefits” section of these FAQs.
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I was hit by an uninsured driver. How do I receive fair compensation?
Insurance policies generally contain uninsured motorist coverage. This coverage allows you to recover for damages caused by an uninsured driver. There are some important limitations on this coverage, however. For instance, it does not cover damage to your vehicle. It covers damages caused by personal injury. If you have been injured by an uninsured motorist, you should consider contacting an experienced attorney if you have not previously done so. An initial consultation with an attorney from Thomas B. Schway and Associates is free of charge and does not commit you to hiring an attorney.
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I was the victim of a hit and run driver. Can I receive compensation for my injuries?
Depending on the circumstances of the collision, you may be eligible to make a “phantom vehicle” claim under your uninsured motorist coverage in your insurance policy. If you have been injured by a hit and run vehicle, you should consider contacting an experienced attorney if you have not previously done so. An initial consultation with an attorney from Thomas B. Schway and Associates is free of charge and does not commit you to hiring an attorney.
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The at-fault driver’s insurer has offered me money to settle my case. Should I sign the check?
Generally, once a claim is settled and a Release executed, you will be prevented from seeking any further compensation from the released party. If your condition gets worse, you will likely not be able to recover further from the at-fault driver or insurer. Additionally, there are a host of other factors to consider before reaching a settlement.
For instance, you may be entitled to underinsured motorist coverage if the at-fault driver did not have sufficient coverage to compensate you for your injuries. Before settling your case with the at-fault party or insurer, you may need to comply with certain notice provisions in order to preserve your claim for underinsured motorist coverage.
Another example of a factor to consider prior to settling a case is where a health insurer has made payments for medical bills incurred due to an accident. If you settle with an at-fault driver, you may have to repay the health insurer a portion or all of its payments.
There are many other factors to consider. Considering these factors is an extremely important part of the process before accepting any settlement. You should consider contacting an experienced attorney prior to accepting any settlement monies or signing any Release. An initial consultation with an attorney from Thomas B. Schway and Associates is free of charge and does not commit you to hiring an attorney.
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What does it cost to talk to an attorney regarding an accident I was involved in?
An initial consultation with an attorney from Thomas B. Schway and Associates is free of charge and does not commit you to hiring an attorney.
Motor Vehicle Accidents - No-Fault Benefits
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I’ve heard that Minnesota is a “no-fault” state. What does that mean?
No-fault automobile insurance is a type of automobile insurance coverage that applies regardless of who is at fault for the accident, but the benefits it provides are limited.
Often, a claim for no-fault benefits will be made against your own company. This is not an admission that you were at fault for the accident. You have purchased “no-fault” insurance coverage specifically for the event that an accident occurs, and it covers you regardless of who is at fault.
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What benefits are available under no-fault insurance coverage?
Generally, no-fault insurance covers medical expenses, wage loss, mileage to and from doctors, and replacement services (such as help cleaning the house) caused by injuries sustained in a motor vehicle accident.
These benefits, however, are limited. Income loss, for example, is paid at 85% of your gross wage, with a maximum of $250.00 per week. The total limits of coverage are $20,000 for medical expenses and mileage combined, and $20,000 for wages and replacement services combined. If you have “stacking” coverage, these limits may be higher.
If you are have questions about what benefits may be provided and what may not, you should consider contacting an experienced attorney if you have not previously done so. An initial consultation with an attorney from Thomas B. Schway and Associates is free of charge and does not commit you to hiring an attorney.
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How do I start getting no-fault benefits?
You need to contact your insurance company and fill out an application for benefits. It is important to be clear as to the injuries you have sustained and how the accident occurred. Any time you are asked to fill out and/or sign a document relating to an accident, you should consider contacting an experienced attorney if you have not previously done so. An initial consultation with an attorney from Thomas B. Schway and Associates is free of charge and does not commit you to hiring an attorney.
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I wasn’t at fault for the accident; won’t bringing a claim against my own insurance company increase my insurance rates?
No. An insurance company cannot raise your rates for making a no-fault claim. The only way your rates can go up due to an accident is if you’re at fault for the accident.
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I wasn’t driving my car at the time of the accident. Why does my insurance company need to get involved?
Each accident is different. Depending on the situation, the “priority” of coverage can change. In other words, the facts specific to your accident govern which insurance policy is responsible for paying your claims.
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My insurance company has been paying my medical bills and lost wages, but just sent me a letter stating it wants me to see another doctor for a second opinion. What should I do?
An insurance company may send you to a doctor of its choosing for an evaluation. This is commonly referred to as an "adverse" exam or "independent medical exam." If the insurance company sets up an "adverse" exam for you, you should consider contacting an experienced attorney if you have not previously done so. An initial consultation with an attorney from Thomas B. Schway and Associates is free of charge and does not commit you to hiring an attorney.
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My insurance company just sent me a letter saying it wasn’t going to pay for my medical bills anymore, but I am still hurt. What should I do?
You generally have a right to contest a discontinuance of benefits through arbitration or through District Court, depending on the situation. You should consider contacting an experienced attorney if you have not previously done so. An initial consultation with an attorney from Thomas B. Schway and Associates is free of charge and does not commit you to hiring an attorney.
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I was working at the time the accident happened. I thought that workers compensation pays for my medical bills and lost wages. Do I need to make a no-fault claim?
You should notify the no-fault insurer of the accident. Workers compensation is a “primary” method of recovery in an automobile accident of this nature, but it is not an “exclusive” remedy. In other words, workers compensation pays for all claims that could be paid by either no-fault insurance or workers compensation. However, there are some benefits available through no-fault insurance that are unavailable through workers compensation, such as replacement services, for which the no-fault insurer is responsible. If you were working at the time of the accident, and are unsure what losses should be paid by no-fault insurance and what losses should be paid by workers compensation, you should consider contacting an experienced attorney if you have not previously done so. An initial consultation with an attorney from Thomas B. Schway and Associates is free of charge and does not commit you to hiring an attorney.
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I don’t have automobile insurance of my own. Does that mean I can’t make a claim for no-fault benefits?
Not necessarily. There are many situations in which a no-fault claim can be made to the insurance company of the vehicle you were driving, the vehicle in which you were a passenger, the vehicle that hit you (if you were a pedestrian or on a bicycle) or to the assigned claims plan. If you are unsure whether you are entitled to make a no-fault claim, but you have sustained injuries and/or lost wages due to a motor vehicle accident, you should consider contacting an experienced attorney if you have not previously done so. An initial consultation with an attorney from Thomas B. Schway and Associates is free of charge and does not commit you to hiring an attorney.
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What if I am from another state and I am involved in an accident in Minnesota?
Generally, you will be able to make a claim for Minnesota no-fault benefits, even if your insurance policy was written in a state that does not have no-fault insurance. If you are unsure whether you are entitled to make a no-fault claim, but you have sustained injuries and/or lost wages due to a motor vehicle accident, you should consider contacting an experienced attorney if you have not previously done so. An initial consultation with an attorney from Thomas B. Schway and Associates is free of charge and does not commit you to hiring an attorney.
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What doctor should I see? Do I need to get a referral?
You do not need a referral. No-fault insurance is not health insurance. You can generally see any doctor you choose to help you recover from injuries sustained in a motor vehicle accident.
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Is chiropractic treatment covered through no-fault insurance?
Yes. You can generally see any doctor you choose to help you recover from injuries sustained in a motor vehicle accident.
FAQs about Wills & Trusts
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What is a Will?
A will is a legal document that specifies how a person's property and assets should be handled after their death. The person making the will can give instructions on how the property should be divided, who should receive what portions or specific items, and even who will take care of any surviving minor children.
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Why should I have a will?
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To direct the disposition of your property to the people and/or charities in the proportions you desire.
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To avoid application of the intestacy laws.
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To simplify estate administration and reduce post-death costs.
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To designate fiduciaries, including personal representative, guardian or trustee.
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To establish trusts.
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What will happen if I die and do not have a will?
If you were to die with no will or other comparable estate planning tool, it is called dying intestate. State statutes then dictate how an estate is divided which is determined as part of a court proceeding called probate. In such a proceeding, the state's intestacy laws determine who will receive what portion of your assets.
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What is required for a will to be valid?
Wills must meet state legal requirements to be effective. Consult with one of our attorneys for professional guidance to make sure that your will is valid.
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When does a will become operative?
A will only becomes operative upon the death of the person who made the will.
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How can a person change a will?
If a will is valid, it is effective until it is changed, revoked, destroyed, or invalidated by the writing of a new will. Changes or additions to an otherwise acceptable will can be most easily accomplished by adding a codicil. A codicil is a document amending the original will, with equally binding effect. Therefore, a codicil must be executed in compliance with applicable law, using the same formality as the original will. Wills cannot be changed by simply crossing out existing language or adding new provisions, because those changes do not comply with the formal requirements of will execution.
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How can I leave specific items to particular people?
To avoid frequent changes to your will as property is acquired, a will can specify that personal property (property other than money, real estate, and assets that are titled to you) is to be distributed in accordance with instructions provided in a separate document. A personal property instruction sheet should be kept with the will to which it relates, and should describe each item in detail to avoid later confusion or hard feelings.
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How often should I update my will?
Wills should be reviewed at least every two years as changes in probate and tax laws may change the effectiveness of certain provisions and some underlying assumptions. In addition, you should update your will when ever a major life change occurs such as births, deaths, marriages or divorces, and major changes in your property/assets. Because state law governs wills, if you move to another state, you should have your will reviewed for compliance with the new state's laws.
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What should I do with my will now that I have one?
Let your family and friends know that you have made a will and where you plan on keeping it. Keep your will where you keep your other important documents such as a safe or a fire box where it is accessible to the person you have nominated to act as your personal representative. If you choose to store your will in a bank safe deposit box, you will want to make sure that the person you have nominated to act has access to the box if you become incapacitated. It may be a good idea to give your personal representative a copy of your will also.
FAQs about Probate
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What is probate?
When an individual dies owning property in his or her name, that property generally must go through probate. Probate is a legal procedure that transfers ownership of property to others.
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Why go through probate?
The probate system is designed to ensure the validity of a will, to give notice to all possible claimants of property and to resolve ownership disputes and rights.
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What if the person that died did not have a will?
Probate courts also distribute property not covered by a will (intestate estates) according to legal defaults set forth in Minnesota Statues.
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Do you always need to go through probate?
Some property does not require probate in order to change hands: joint tenancy property and contractual arrangements such as insurance policies and retirement accounts generally go directly to the surviving joint tenant or named beneficiary without probate oversight. Probate also is not required for assets held in trust. Additionally, in Minnesota probate may be avoided entirely if the net value of the probate assets does not exceed $20,000.00. You should consider consulting an attorney to decide if probate is necessary. An initial consultation with an attorney from Thomas B. Schway and Associates is free of charge and does not commit you to hiring an attorney.
FAQs about Health Care Directives or Living Wills
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What is a Health Care Directive or Living Will?
A Health Care Directive is a legal document that gives a person the authority to make medical decisions for you, in the event that your attending physician determines that you are unable. The legal term provided for in Minnesota statutes for this was "living will" up to 1998. In 1998 Minnesota statutes were amended so that now the document is called a "Health Care Directive."
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What does a Health Care Directive Do?
First, it appoints an individual or individuals to make decisions concerning your health care in the event that you are unable to make those decisions yourself. Secondly, it may state your wishes and provide instructions as to how you want your care to be handled in the event that you are no longer able to speak for yourself.
Additional provisions of the form allow you to state your preference as to whether to donate your organs and allow you to state whether you would prefer to be buried or cremated.
It is important to consult an attorney as compliance with local laws is very important to ensure one's wishes will be honored.
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Is just drafting a Health Care Directive enough?
No. You should talk with the person that you have named in the Health Care Directive to act on your behalf in depth about your wishes. More specifically situations regarding withdrawal of a feeding tube (giving food and water by artificial means), withdrawal of life support, administering pain treatments that may shorten life, or other specifics that seem appropriate. Just telling your agent to “unplug you” is not appropriate as it may mean different things to different people.
FAQs about Power of Attorney
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What is a Power of Attorney?
This document grants another person full legal authority to act on their behalf should they become unable to handle their personal and financial affairs. Without it, the Court may have to become involved through costly legal proceedings in order to appoint a person to handle all legal affairs.
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How is a Power of Attorney different from a Health Care Directive?
A Power of Attorney gives a person the authority to make financial and other decisions for you, in the event you are unable. A Health Care Directive gives a person the authority to make medical decisions for you, in the event you are unable.
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How is a Power of Attorney different from a will?
A Power of Attorney gives a person the authority to make financial and other personal business decisions for you pre-death. A Power of Attorney becomes inoperative once you die. After you die, your will becomes the primary document which expresses your wishes and your Personal Representative will take care of the handling of your estate, not your Power of Attorney.
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