MAY 2024 Welcome to the latest issue of Lawyer Monthly magazine. This edition features Andrew D. Reid, a prominent Adjudicator, Chartered Quantity Surveyor, and Chartered Construction Manager on our front cover. Andrew brings a wealth of experience from his work across the UK in claims, contract, and dispute resolution, especially highlighted in our detailed discussion on construction disputes and ADR methods. Inside, you’ll find interviews with several leading legal professionals: Shahab Mossavar-Rahmani of Omega Law Group, Holger Siegwart, Esq of Siegwart German American Law, Catie Meehan of Steinberg Law Firm, Bradley W. Hertz, and Rongkuan Yang of Beijing Kangda (H.K.) Law Firm. Each shares insights from their diverse areas of expertise, reflecting the dynamic nature of today's legal environment. Through these conversations, we aim to provide you with a deeper understanding of the various challenges and innovative solutions within the legal field today. Thank you for joining us in exploring these compelling legal narratives. Warm regards, Mark Palmer Editor, Lawyer Monthly Andrew Reid Exploring UK Construction Disputes and Alternative Dispute Resolution Shahab Mossavar-Rahmani Los Angeles Personal Injury Attorney and Trial Lawyer 4 10 LAWYER MONTHLY©2024 Universal Media Limited Lawyer Monthly is published by Universal Media Limited and is available on general subscription. Readership and circulation information can be found at: www.lawyer-monthly.com. The views expressed in the articles within Lawyer Monthly are the contributors’ own. All rights reserved. Material contained within this publication is not to be reproduced in whole or in part without prior permission. Permission may only be given in written form by the management board of Universal Media Limited. Approx. 302,000 net digital distribution.
Production Team: Emma Tansey, Luke Ostle production@lawyer-monthly.com Sales Enquires: Jacob Mallinder Jacob.mallinder@universalmedia365.com @lawyermonthly @LawyerMonthly @lawyermonthly company/lawyer-monthly Universal Media Limited, PO Box 17858, Tamworth, B77 9QG, United Kingdom 0044 (0) 1543 255 537 CONTENTS AN INTERVIEW WITH... 4. Andrew Reid Exploring UK Construction Disputes and Alternative Dispute Resolution 10. Shahab Mossavar-Rahmani Los Angeles Personal Injury Attorney and Trial Lawyer 16. Holger Siegwart, Esq Settlement of Estates and Estate Litigation in Germany 22. Catie Meehan South Carolina Workers’ Compensation – Key Updates Employees Need to Know 26. Bradley W. Hertz Political & Election Law in California 30. Rongkuan Yang Dispute Resolution and Mediation in China TRANSACTIONS 36. Anaam Group’s SAR 236.25M Capital Boost 37. Euro Manganese’s Funding from Orion Resource Partners 38. Lodge Brothers Funerals’ Transition to Employee Ownership 39. Nespon Inc’s Acquisition of CloudBlue Services SAS in Colombia 40. Proctosedyl’s Acquisition of Bayer in Italy 41. Tecniplast’s entry into the Capital of KW Apparecchi Scientifici Catie Meehan South Carolina Workers’ Compensation Holger Siegwart, Esq Settlement of Estates and Estate Litigation in Germany 22 16
Andrew Reid What is construction alternative dispute resolution? Construction alternative dispute resolution (ADR) is a variety of methods to conclude construction disputes in a less adversarial formal process (such as litigation), either on a temporary or finally binding basis. ADR is not new, with mediation appearing in ancient times – developed in Ancient Greece, then in the Roman civilization. ADR can be adjudicative or non-adjudicative. Adjudicative ADR is where a neutral third party is appointed to determine a dispute and provides more flexibility and privacy than litigation. The parties retain more control of the dispute (than with litigation), and a significant factor is who is appointed to determine the dispute (as with litigation, the judge is appointed). Some examples of adjudicative ADR methods are arbitration, adjudication, and expert determination. In all three of these methods, the parties have a degree of control over the appointment of the thirdparty neutral, selecting with a skill set and experience (and availability) best suited to hear and determine the dispute. Andrew D. Reid is an Adjudicator, Chartered Quantity Surveyor, Chartered Construction Manager, and NEC4 ECC Accredited Project Manager with experience in Private Practice, Development and Main Contracting industries. He provides claims, contract, and dispute resolution (adjudication) services (as adjudicator or party representative) provided in Scotland, England and Wales. He is also a RICS Assessor and Counsellor. He also has experience as a Tribunal Secretary in a large complex international arbitration, with his involvement spanning four years. Lawyer Monthly recently caught up with Andrew to discuss construction disputes and how to resolve them. An Interview with... Exploring UK Construction Disputes and Alternative Dispute Resolution 4 LAWYER MONTHLY MAY 2024
Non-adjudicative ADR is used where the parties wish to regain control of the process (as compared to litigation) and the outcome. Examples of this type of ADR are: negotiation, mediation, early neutral/ expert evaluation, and conciliation. This ‘softer’ dispute resolution is most likely to preserve a business relationship between the parties. Although adjudication is seen as less adversarial than litigation, when a Notice of Adjudication is served, this can have a negative impact on the relationship, therefore increasing the likelihood of an adversarial defence. When compared to litigation, the motivations for ADR can include reduced party costs, speed of settlement, choice of forum, control and flexibility of process, and confidentiality. What are the most common causes of disputes in the construction industry? Disputes in the construction industry are common, and like all disputes, they vary in size and complexity, with most centering around money and time. Common causes of
construction disputes are the lack of competence of project participants, inadequate contract administration, changes by the Client, exaggerated claims, and inappropriate payments. Other areas of dispute are ambiguity in contract terms, errors in contract documents, changes/ variations to the contract – the principle if they are changes/ variations, and secondly, the cost of such change, and poor/incorrect risk allocation. A very common dispute and/ or difference is the validity of payment applications/ notices and pay-less notices, which are commonly known within the sector as “smash and grabs.” How can construction disputes be avoided? The likelihood of avoiding or having more chance of success should a dispute happen from before the contract was entered into. The contract requires to be in a suitable form for the works being undertaken, the parties, the value and complexity of the works, and the party’s appetite for risk. The contract also requires to be understood by the party’s representatives who are operating the contract, i.e., what are the notice provisions for delay, what constitutes a variation or a change, and how are claims notified and valued. Considering that a leading cause of disputes and/ or differences is the lack of competence of project participants and inadequate contract administration, it is clear that the construction industry is required to review its training of staff, resourcing of projects (are the projects either under-resourced or not equipped with the correct resource in terms of experience and qualifications). What is construction adjudication, and what types of disputes is adjudication used for? Statutory adjudication is the most popular form of dispute resolution for construction contract disputes in the UK 6 LAWYER MONTHLY MAY 2024
and is the determination of a dispute and/ or difference within a 28-day period (or 42 days as agreed by the Referring Party (or Claimant) or such other timescales as agreed by the Referring Party and the Responding Party (the Respondent). The adjudication process can be either statutory (HGCRA 1996) or contractual and is conducted by a third-party neutral, who is nominated either by the parties (by joint agreement) or as nominated by the Adjudicator Nominating Body (ANB). The adjudicator is generally requested to have a particular background, experience, and skills to resolve the dispute. For example, in the event the dispute regarded defective works, it may be beneficial for the adjudicator to have an architectural background, whereas, for a quantum dispute (such as the valuation of a variation or loss and/ or expense claim), it would likely be beneficial for the adjudicator to have a background and qualifications in quantity surveying. Adjudication allows a party to refer a dispute and/ or difference for determination at any time, allowing issues to be resolved quickly and if necessary, during the course of the works – this allows for a temporary binding decision, with the losing party paying first and arguing in a more formal setting (such as litigation or arbitration) at a later stage. Adjudication is supported by the courts, and the conclusion in the Latham Report was that the system of adjudication ‘must become the key to settling disputes in the construction industry’. What are the benefits of construction adjudication? Construction adjudication offers several benefits to parties involved in construction disputes, contributing to the efficient resolution of conflicts and the successful completion of projects. Firstly, adjudication provides a swift and cost-effective means of resolving disputes. Unlike traditional litigation, which can be protracted and costly, adjudication proceedings are typically expedited, with strict timelines for the submission of evidence and the rendering of decisions. This allows parties to obtain a resolution in a timely manner, minimizing delays and disruptions to the construction process. Secondly, construction adjudication offers a flexible and adaptable approach to dispute resolution. The process can be tailored to suit the specific needs and circumstances of each dispute, allowing parties to choose adjudicators with relevant expertise and experience in the construction industry. Additionally, adjudication allows for the consideration of technical and complex issues by knowledgeable professionals, ensuring that disputes are resolved effectively and on their merits. Thirdly, adjudication promotes transparency and fairness in the resolution of disputes. Adjudicators are required to act impartially and make decisions based on the evidence presented by the parties without bias or prejudice. This helps to instil confidence in the integrity of the process and the fairness of the outcome, fostering trust and cooperation among stakeholders. Furthermore, construction adjudication can help to preserve ongoing business relationships between parties involved in construction projects. By providing a structured and formal mechanism for resolving disputes, adjudication enables parties to address their grievances in a constructive and professional manner without resorting to acrimonious litigation. This can help to maintain positive working relationships and facilitate the successful completion of projects, benefiting all parties involved. In conclusion, construction adjudication offers numerous benefits, including speed, cost-effectiveness, flexibility, transparency, and the preservation of business relationships. By providing a fair and efficient means of resolving disputes, adjudication contributes to the overall success and viability of construction projects, helping to ensure their timely completion and the satisfaction of all parties involved. What are the costs for construction adjudication? Parties are liable for the costs and expenses of preparing their case. They may, however, following the issue of the Notice of Adjudication and by agreement (in writing), confer power on the adjudicator to award party costs. Depending on the size and complexity of the case, each party may instruct their own counsel and experts. However, adjudication was designed so that a party could prepare their own case and self-represent without external legal assistance. Given the size and complexity of construction disputes, combined with the complexities of competing arguments and case law, WWW.LAWYER-MONTHLY.COM 7 A very common dispute and/or difference is the validity of payment applications/notices and pay-less notices, which are commonly known within the sector as “smash and grabs.”
8 LAWYER MONTHLY MAY 2024 it is not common for this to happen, with parties generally appointing legal assistance. The parties are jointly and severally liable for the adjudicator’s costs and expenses. Adjudicator rates can vary, however, and are commonly between £300 to £450 per hour, depending on experience and qualifications. Generally, the policy adopted is that ‘costs follow the event’ and may be adjusted depending on a party’s success. In most cases, it would be foreseeable that the unsuccessful party would be liable for most, if not all, of the adjudicator’s fees and expenses. What is the process for construction adjudication? The adjudication process commences with the issue of the Notice of Adjudication of the Referring Party. This Notice is served to the other contracting party, the Responding Party. The Notice sets out the nature of the dispute and/ or difference and the redress sought. The parties can, by joint agreement, name and nominate an adjudicator. However, it is generally difficult to reach an agreement once the parties are locked in a dispute. The contract generally provides for an ANB (Adjudicator Nominating Body) (such as CIArb, RICS, UKA, TeCSA), where the Referring Party then seeks adjudicator nomination from the relevant ANB stated in the Contract. Once an adjudicator is nominated, the Referring Party issues their Referral (and within seven days of the Notice of Adjudication), which then cloaks the adjudicator with the power to act and issue directions. The issue of the Referral also starts the clock of the 28day process (or otherwise extended). The Referral is the Referring Party’s statement of case and is generally supported with appendices comprising expert reports, witness statements, and other such evidence as required in relation to the dispute. The Responding Party then is generally directed by the adjudicator to prepare and serve their defence – the Response. This, again, Construction adjudication can help to preserve ongoing business relationships between parties involved in construction projects.
is generally supported by an array of appendices to rebut the Referring Party’s case, which may include a counterclaim as part of their defence. It is interesting to note that statutory adjudication under the HGCRA does not prescribe the Response. However, it is clear that a party has a right to defend a case made against them. The adjudicator will then direct a Reply to the Response from the Referring Party; following receipt of this, the adjudicator may then direct a Rejoinder to the Reply from the Responding Party. Again, this depends on the nature of the case, the complexities and the timescales. The parties may request that an oral hearing be convened, or indeed, the adjudicator may direct that an oral hearing be in order to understand the issues, the party’s case, or the evidence. The adjudicator then proceeds to their Decision, which, to be valid and enforceable, must be served within the statutory or agreed timescales. The adjudicator’s decision is temporarily binding and does not finally determine the rights of the parties (unless the parties agree otherwise). The Decision, if issued with reasons, explains the adjudicator’s decision-making and on what basis they make decisions. Again, the Referring Party may request that the adjudicator does not provide reasons; the reason for doing so may be to save costs. Are you able to challenge an adjudicator’s decision on enforcement? Adjudicators’ decisions can be challenged, however, for limited reasons, and the general approach of the courts is to enforce adjudicators’ decisions. Should a decision be challenged, the losing party would need to demonstrate that the adjudicator either had no jurisdiction to arrive at their decision or that there was a material breach of the rules of natural justice. Should a party form the view that the adjudicator has no jurisdiction to act or continue with the adjudication, their position should be made clear and at the outset that it forms this view. The party then has two options, to participate or not. It would not be wise for a Responding Party to sit silently and not defend its case on the supposition that it will be successful in the challenge of the decision. If a party is dissatisfied with an adjudicator’s decision, it is free to pursue a final resolution of the dispute through litigation or arbitration. What should one expect from the construction adjudication process? Construction adjudication could now no longer be considered as an alternative, as it is the main method for parties to resolve their construction disputes in the UK. This is supported by the view of Lord Justice Coulson, made in the Court of Appeal, that adjudication “is not an alternative to anything; it is the only game in town” (John Doyle Construction Limited (in liquidation) and Erith Contractors Limited). This is due to the fact that the parties are able to seek a resolution of their dispute and/ or difference in an expeditious and confidential way. The construction industry is a fast-paced industry, and parties cannot wait months for a resolution to their dispute. The parties should expect an adjudicator’s decision that meets the needs of the case, decides the issues, and has been reached by an experienced individual with appropriate qualifications. A new form of ADR – RICS Conflict Avoidance Process. This is an early intervention process in construction and engineering projects to ensure that issues that are emerging are resolved by the parties involved without recourse to costly and time-consuming dispute resolution processes. The process involves the input of a seasoned industry consultant, drawn from any discipline, who will work with the parties and come up with a series of binding or non-binding recommendations. Anecdotally, the process has been very effective in resolving issues between the parties and in allowing them to carry on and complete the projects in a spirit of trust and mutual cooperation. In Scotland, there has been excellent support for the Construction Industry Collaborative Voice (CICV), and construction organisations like SBF, SELECT, CECA, SNIPEF, BESA, and the Finishes and Interiors sector have all signed the Conflict Avoidance Pledge and have encouraged their membership to do likewise. So far, over 430 construction organisations throughout the UK have signed the Pledge, and members of SBF are encouraged to do so by following this link - www.rics. org/capledge. The Conflict Avoidance Coalition Steering Group is chaired by Mr Len Bunton, a well-seasoned and leading dispute practitioner in the UK. WWW.LAWYER-MONTHLY.COM 9 Sources of assistance: (2021). Wilmot-Smith on Construction Contracts (4th ed.). Oxford University Press. (2018). Coulson on Construction Adjudication (4th ed.). Oxford University Press. (2021). Keating on Construction Contracts (11th ed.). Thomson Reuters (t/a Sweet & Maxwell). (2013). The Jackson ADR Handbook (1st ed.). Oxford University Press. Nazzini, R & Kalisz, A 2023, 2023 Construction Adjudication in the United Kingdom: Tracing trends and guiding reform. King’s College London. https://doi.org/10.18742/pub01-161 Andrew D. Reid BSc (Hons), Dip.Adj, LL.M, FCIArb, FRICS, MCInstCES, MCIOB, NECReg Director, ADRQS Ltd. 24 Blythswood Square, Glasgow, G2 4BG Tel: 0141 674 8699 Email: andrew@adrqs.co.uk www.adrqs.co.uk
Shahab Mossavar -Rahmani were overcharged by the prosecutor, or were guilty, but the prosecution sought excessive punishments. For me, these issues underscored the importance of diligent legal representation in safeguarding the rights of the marginalized and indigent. During this time, I also became acutely aware of the devastating effects of negligence outside the realm of criminal law. My decision to transition into personal injury law was fueled by a desire to continue serving as a steadfast advocate for justice while addressing the complex challenges faced by individuals who had been wrongfully injured. By leveraging my legal expertise and passion for advocacy, I sought to make a meaningful difference in the lives of those grappling with the aftermath of traumatic accidents and unsure of what their rights were. Shahab, as a skilled trial lawyer who has devoted his practice to helping individuals who have been wrongfully injured and holding negligent individuals responsible for their actions, when did you decide to become a Los Angeles personal injury lawyer? I decided to become a personal injury lawyer after witnessing firsthand the profound impact that legal representation can have on individuals. As a Deputy Public Defender, I represented clients who had been wrongfully accused of crimes, In this revealing interview, Shahab Mossavar-Rahmani, a seasoned trial lawyer based at Los Angeles firm Omega Law Group, discusses his transition from a Deputy Public Defender to a personal injury lawyer dedicated to advocating for those wrongfully injured due to negligence. An Interview with... Los Angeles Personal Injury Attorney and Trial Lawyer www.omegalaw.com WWW.LAWYER-MONTHLY.COM 11
In tort law, the victim— the plaintiff—has suffered injury or loss due to someone else’s negligence. Torts are civil actions, not criminal ones, meaning the wrongdoer is charged financially. In which areas does Omega Law Group help accident victims file lawsuits aimed at securing financial compensation? Omega Law Group provides comprehensive legal assistance to accident victims seeking financial compensation in various areas of personal injury law including auto accidents, rideshare accidents, bike accidents, motorcycle accidents, truck accidents, wrongful death, brain injuries, slip and falls, pedestrian accidents, bus accidents, scooter accidents, dog bites, drunk driving accidents, catastrophic injuries, and spine injuries. What is a qualifying personal injury lawsuit in Los Angeles, and how do I know if I have a case? In California, to qualify for a personal injury lawsuit, certain criteria must be met. These include establishing that the defendant owed a duty of care to the plaintiff, that this duty was breached through negligent or wrongful actions, that the breach directly caused the plaintiff’s injuries, and that measurable damages were incurred as a result. Additionally, California has a statute of limitations that sets a time limit within which a lawsuit must be filed, typically within two years of the date of the injury, unless it involves a governmental entity. What should I do after suffering an accident or serious injury in Los Angeles? After suffering an accident or serious injury, it’s important to do two things without delay, seek medical care for any injuries and gather as much evidence as you can. While at the scene, take photos of the vehicles, get contact information for witnesses, and make sure to exchange insurance and contact information with 12 LAWYER MONTHLY MAY 2024
all involved parties. I also encourage everyone to contact a lawyer immediately, if for nothing else, to get educated on your rights and your options. When it comes to personal injury cases, how can you determine their chances of success? Determining the chances of success in personal injury cases involves a thorough evaluation of various factors, including the strength of evidence, extent of damages, liability, and the credibility of witnesses. Ultimately, a comprehensive analysis of these factors allows for an informed assessment of the case’s prospects and helps in devising effective legal strategies to maximize the chances of a favorable outcome. The best personal injury lawyers in Los Angeles are experienced with California law, have a track record of success in negotiating settlements and are ready and able to win verdicts in court. As a top rated and skilled personal injury trial lawyer that has recovered millions of dollars in personal injury claims, are there any notable or standout cases you can discuss? Very early in my practice, in fact one of the first clients I ever had the pleasure of representing, was a woman who had a relatively small claim. The property damage was minimal, and she had several gaps in her medical care, and had a bad history of substance abuse. At mediation, we attempted to settle her claim for $25,000 but the insurance adjuster refused to resolve the case for anything beyond “nuisance value.” We ended up in arbitration and, in the process of preparing her case, I spent hours and hours with her at her home talking about how her life had been impacted. Through the process of preparing her case for arbitration, I learned so much more about how the seemingly small collision had a huge impact on her life. The arbitration award was over four times what the client was willing to take at mediation. It really opened my eyes to how important the human story is in what we do. Personal injury law is a huge responsibility as lawyers often meet clients at their lowest point. The whole purpose of a personal injury claim is to restore an individual back to the position they would have been had the incident never occurred. How important is the lawyer-client relationship? The lawyer-client relationship is the foundation for everything. Establishing trust, open communication, and empathy are essential in understanding a client’s needs, concerns, and goals. A strong relationship fosters collaboration, allowing us to tailor legal strategies to the client’s specific circumstances and priorities. Moreover, it provides emotional support to clients during what is often a challenging and stressful time, ensuring they feel heard, valued, and empowered throughout the legal process. In 1998, when 46 states rallied together against America’s four largest tobacco companies (Philip Morris Inc., R. J. Reynolds, Brown & Williamson and Lorillard) to recover the costs of caring for lifelong smokers, the original participating manufacturers agreed to pay a minimum of $206 billion in settlement. What are the factors that affect the amount of compensation a victim receives in Los Angeles? Several factors impact the amount of compensation a victim receives for a personal injury. These include the WWW.LAWYER-MONTHLY.COM 13 I sought to make a meaningful difference in the lives of those grappling with the aftermath of traumatic accidents and unsure of what their rights were.
severity of the injuries sustained, the extent of medical expenses incurred, the degree of lost wages or income, the level of pain and suffering endured, any property damage involved, comparative fault if applicable, insurance policy limits, and the effectiveness of legal representation in negotiating a fair settlement or presenting a compelling case in court. With an estimated 50,000+ personal injury lawyers & attorney’s businesses in the US as of 2023 what should you look for when searching for a personal injury attorney in Los Angeles? While there are several important concerns, I think the most important thing a client should look for is if to feel comfortable and trusting of an attorney. Hiring a lawyer often feels like an arranged marriage. There will be ups, there will be downs, but if you feel comfortable and can trust the attorney working on your case, it’s very likely you will have a great outcome. Beyond that, it’s also crucial to consider factors such as the attorney’s experience, specialization in personal injury law, general reputation, and transparency about fees and outcomes. Evaluating these factors carefully can help ensure you find the right representation to advocate effectively for your rights and secure the compensation you deserve. 14 LAWYER MONTHLY MAY 2024 Shahab Mossavar-Rahmani Omega Law Group, PC 8350 Wilshire Blvd., Third Floor Beverly Hills, CA 90211 www.omegalaw.com
2015. Under the Regulation, the law of the State in which the decedent had his habitual residence shall apply unless he was manifestly more closely connected to another State. The Regulation also allows for a choice of the law of a State whose nationality a testator possesses. German probate courts will usually apply German law to the entire German estate if a German resident leaves assets to heirs in the United States. If a decedent domiciled in the U.S. leaves assets in Germany, the German probate court will apply the conflict of laws rules of the home state of the decedent in the United States. Conflict of laws rules under state laws in the U.S. typically provide that the law of the decedent’s domicile shall apply to movable property, whereas the lex rei sitae shall apply to real property. As a result, German probate courts typically have to apply the law of a U.S. jurisdiction with regard to a decedent’s movable property, whereas succession to real property will follow German in this situation. What is a cross-border estate? The characteristic of a cross-border estate is that either the claimants and assets are located in different countries, or that a decedent leaves assets in another country. Cross-border estates include individuals of German descent residing in the United States who claim a share of the estate of a deceased relative in Germany as well as German immigrants in the United States leaving assets in their home country. What succession laws apply in a cross-border estate? The applicable law must be determined separately for each jurisdiction in which a decedent leaves assets since each jurisdiction has its own conflict of law rules. Germany follows the so-called EU Succession Regulation of 2012 for all deaths occurring after August 16, 16 LAWYER MONTHLY MAY 2024 Settlement of Estates and Estate Litigation in Germany Siegwart German American Law is a boutique law firm specializing in German Law, cross-border representation and cross-border litigation, providing comprehensive solutions to crossborder and foreign law issues for individual and corporate clients. Lawyer Monthly recently caught up with Holger Siegwart to discuss the settlement of estates and estate litigation in Germany for US-based heirs or claimants. An Exclusive Interview with Holger Siegwart, Esq SIEGWART GERMAN AMERICAN LAW, INC.
all obligations at the time of death (Universalsukzession). In most cases there is no personal representative securing and liquidating assets and paying the decedent’s debt. The heirs, who can only act jointly, personally have the respective authority and responsibility. This requires US based heirs to cooperate with heirs in Germany. Failure to cooperate can expose them to liability, and uninformed cooperation frequently results in foreign heirs receiving less than their fair share. Since heirs become debtors of the decedent’s obligations at the time of death they may inherit debt in Germany, for which they will become personally liable with their own assets. A six-month deadline applies to heirs outside Germany who wish to disclaim the inheritance (Erbausschlagung) and avoid this consequence. At the same time, heirs in Germany and their representatives may attempt to scare U.S. based heirs without detailed knowledge of the estate into Even if the substantive law of a foreign jurisdiction applies to succession in interest, the German court will always apply German rules of civil and probate procedure. What are the most common issues regarding the settlement of estates in Germany for US-based heirs or claimants? Inheritance and succession laws in Germany are notably different from their counterparts in the United States, and so are the rules governing the settlement of estates in Germany. US-based claimants and their local attorneys are often unaware of the issues and risks this creates. Under German law heirs become owners of all assets and debtors of WWW.LAWYER-MONTHLY.COM 17 German probate courts will usually apply German law to the entire German estate if a German resident leaves assets to heirs in the United States.
disinherited spouses and descendants can usually claim a forced share (Pflichtteil) against the heirs for payment of one-half of the value of their intestate share. E.g. if a disowned child would receive a 1/3 share but for a disowning provision in a will, she can still claim payment of 1/6 of the value of the estate. The value of gifts made by the decedent in the last ten years before the passing will be added to the date of death value of the estate for purposes of calculating the forced share. Forced share claimants are entitled to receive an inventory of the estate, which must include gifts made by the decedent and an appraisal of assets without a face value. Forced share claims to compel an inventory and appraisal, and payment of the resulting amount, are frequently the subject of estate litigation in Germany. The legal concept of trusts is not known to German law, which does not allow legal ownership on the one hand and beneficial ownership on the other hand to be separated. Consequently, assets in disclaiming a valuable inheritance suggesting that they will inherit debt. Therefore, it is critical for U.S. based heirs and attorneys to investigate an estate in Germany promptly in order to make an informed decision regarding the acceptance or disclaimer of an inheritance. The nomination of an executor (Testamentsvollstrecker) in a will, with authority to settle the estate, is the exception, not the rule in Germany. Even if there is an executor the settlement of the estate is not court supervised as we know it from probate proceedings in the United States. Unless a will provides for an executor no personal representative will be appointed. It is, therefore, critical for U.S.-based heirs and their attorneys to play a more active role controlling and holding the executor accountable. Spouses and descendants (and parents in the absence of descendants) can be disinherited entirely only under rare circumstances. Under German law, 18 LAWYER MONTHLY MAY 2024 Under German law, disinherited spouses and descendants can usually claim a forced share (Pflichtteil) against the heirs for payment of one-half of the value of their intestate share.
The legal concept of trusts is not known to German law, which does not allow legal ownership on the one hand and beneficial ownership on the other hand to be separated. Germany cannot be trust assets, and a trustee cannot be recorded as the owner of real property in Germany. This creates significant problems when a U.S. based decedent with a traditional estate plan leaves assets in Germany. Pour-over-wills usually provide that the residue of the (probate) estate shall go to the trustee in order to administered and distributed according to the terms of the trust. Moreover, trust agreements between spouses often do not contain specific language that would allow for qualification of the surviving spouse as an heir, or the sole, heir under German standards. It is not uncommon that estate plans drafted by practitioners in the United States fail to address assets and heirs in Germany with these differences in mind. As a result, the settlement of the estate will be significantly delayed and the heirs will incur additional legal fees in order to process the incompatible U.S. estate plan through the German court system. How are cross-border estates taxed? Germany levies an inheritance tax which provides for different exemptions and tax brackets depending on the degree of kinship. Each recipient is taxed individually. Spouses, lineal descendants, and parents are in the most favourable tax class 1 with exemptions of up to 500,000 Euros and tax rates between 7% and 30%. Siblings, nieces, and nephews are in class 2 with an exemption of 20,000 Euros and tax rates from 15% to 43%. All other recipients are in tax class 3 with an exemption of 20,000 and tax rates between 30% and 50%. Estate plans drafted in the U.S. are typically ignorant of German inheritance tax consequences which can create unintended tax consequences, and a significant risk of malpractice for the drafter. If both the decedent and the recipient are non-residents and non-citizens of Germany, or citizens without residence for a number of years, the inheritance tax applies only to German situs property such as real property and business interests. If the decedent is a citizen or permanent resident of the U.S. the value of the German estate will be part of the worldwide estate subject to U.S. estate tax. The provisions of the double taxation agreement between the United States and Germany apply. Even if the value of the overall estate does not exceed the federal estate tax exclusion amount (and also if it does and the decedent is not a citizen or permanent resident of the United States) an interest in an estate in WWW.LAWYER-MONTHLY.COM 19 Holger Siegwart, Esq SIEGWART GERMAN AMERICAN LAW, INC.
will not be able to receive letters of administration in Germany. Likewise, a German executor does not have authority to act in the U.S. While it may be impractical, some States in the U.S. will issue letters to a non-resident executor while others have a strict residency requirement for personal representatives. How quickly can the cross-border estate be resolved, and what, if any, are time limits applicable? Since Germany does not require a formal probate court-supervised administration of estates, disputes can be resolved more expeditiously as long as they are resolved out of court. However, depending on the complexity of the estate and the family situation, litigating inheritance disputes in Germany for U.S.- based claimants may take several years regardless of whether we litigate entitlement issues in probate court or forced share claims in civil court. Can your law firm settle American estates on your own in the USA? We settle decedent estates on our own on a regular basis in California and elsewhere in the United States with the assistance of local counsel if the decedent is German or of German descent or if beneficiaries are German or from German-speaking countries. What are the issues and complexities when litigating cross border estates between Germany and the USA? Civil procedure and probate procedure in Germany are very different from what U.S. based clients and attorneys expect. The substantive law is very different with unexpected surprises as well. It is critical that clients and their attorneys are aware of and understand these differences at all stages of a case in order to secure their best cooperation toward a successful outcome. The requirement to produce certified translations for foreign language documents, Apostilles for foreign public records, and legal opinions to prove Germany, distributions from an estate in Germany, and inherited accounts in Germany may still be reportable to the IRS depending on the value. Failure to meet IRS reporting requirements can result in severe penalties for U.S. citizens and permanent residents. How is an estate dealt with if there are assets in the United States and Germany? This situation requires separate administrations in each jurisdiction. In the United States a personal representative typically administers the estate whereas the heirs themselves settle the estate in Germany based on a certificate of heirship (Erbschein) which is a court order identifying the heirs and their respective shares. The personal representative of a decedent’s estate in the U.S. cannot automatically proceed to settle an estate in Germany. Letters issued to an executor or administrator in the U.S. do not provide authority to act in Germany because probate courts in the U.S. do not have jurisdiction over assets and individuals in Germany. If an executor appointed in the U.S. intends to administer the same decedent’s estate in Germany, it will be necessary to obtain letters testamentary from a German probate court. In the event of intestate succession a personal representative appointed in the U.S. 20 LAWYER MONTHLY MAY 2024
About Holger Siegwart Mr. Siegwart was born and raised in Southern Germany where he practiced law with an international firm for almost a decade before he relocated to the United States. He started practicing law in the U.S. in 2007 and established his own firm in 2010. The experience of living and working in both countries, and the practical understanding of both societies and their legal and administrative systems, have become invaluable assets for his clients. Mr. Siegwart serves as a retained expert and expert witness in the U.S. on German law and in Germany on U.S. law. He is one of very few attorneys who are not only licensed in both countries but actually practice in courtrooms in both countries. SIEGWART GERMAN AMERICAN LAW specializes in connecting both worlds. Every case the firm handles has a German and an American connection. One main focus of the firm’s practice is the settlement of German-American estates and German-American estate litigation. foreign law slows down proceedings significantly. Parties and counsel being in different countries and time zones, unable to appear on short notice (remote appearance are generally not available for this type of proceedings at this time) causes additional delays. German civil procedure and probate procedure do not provide for discovery as we know it in the United States. This means that opposing parties do not have to respond under oath to interrogatories or requests for admission and production of documents, nor can the parties subpoena records. There are no depositions under oath outside the courtroom. Witnesses and parties testify in the courtroom as the case proceeds questioned by the judge and counsel. The testimony is not always given under oath nor is it recorded verbatim. Witness testimony in civil and probate proceedings in Germany is not as thorough and detailed as a deposition in the United States. These factors have a major impact on the evidentiary strategy in a disputed case, as a case that is winnable in the U.S. may not be winnable in Germany and vice versa. It is critical for parties and counsel to understand and evaluate the effect of these factors on the outcome of a case at an early stage. The business of winding up an estate can be challenging for all concerned. This is the case for most estates, but it can be particularly so for those estates that include an international or crossborder element. What are the key issues to be kept in mind when dealing with cross-border estates between Germany and the USA? Both substantive law and procedure are systemically different in both countries. It is important for claimants to be proactive as soon as they become aware that they may have a case, particularly if hostile parties have taken possession of the estate or relevant evidence. This is also to determine whether an estate is indebted and the inheritance should be disclaimed. In disputed cases, U.S.- based claimants should demonstrate from the outset that they are able and willing to litigate the matter in Germany if necessary. Attorneys drafting estate plans for clients with assets or a future inheritance in Germany must not only be aware that German succession laws do not recognize trusts, but also consider German forced share claims and German inheritance tax, which will lead to unintended results if not addressed properly. WWW.LAWYER-MONTHLY.COM 21 Holger Siegwart, Esq. Rechtsanwalt and Attorney at Law Licensed in California and Germany SIEGWART GERMAN AMERICAN LAW, INC. San Francisco Airport Office International Trade Building 1799 Bayshore Highway, Suite 150 Burlingame, CA 94010, U.S.A. Tel: (001) 650 259 9670 F (001) 650 259 9682 mail@siegwart-law.com www.siegwart-law.com
Catherine “Catie” Meehan is a partner at the Steinberg Law Firm. She has an extensive background in the medical field with degrees in both psychology and nursing, in addition to her law degree. Catie’s nursing background comes into play daily as she represents individuals who have been seriously injured at work or in their lives. Her experience as a licensed registered nurse (RN) at the Medical University of South Carolina (MUSC) gives her an understanding of her clients’ medical issues, injuries, treatment, and healing that many attorneys do not have. As a nurse, she developed the empathy to understand what her clients are experiencing. Clients also appreciate Catie’s open and honest communication and her ability to set realistic outcomes. She advocates fiercely on her clients’ behalf because she knows the toll a workers’ compensation or personal injury case can take on her clients and their families. Catie understands the difficulties a personal injury or work accident creates including pain and income loss. She works hard to ensure that clients receive regular workers’ compensation weekly checks and uninterrupted medical care. Catie earned a B.A. in psychology from the University of Notre Dame before heading to MUSC to earn a B.S. in nursing. After years of serving patients in a hospital setting, Catie wanted to help them in a legal setting and decided to become a lawyer. Both medical and legal disciplines serve her well in understanding what victims of accidents go through. 22 LAWYER MONTHLY MAY 2024
WWW.LAWYER-MONTHLY.COM 23 she is entitled to: (1) medical treatment; (2) weekly checks while an employee is out of work due to her injuries; and (3) a settlement amount for the loss of use of the injured body part once the injured worker has been released from the doctor. Of course, this is a very concise overview of workers’ compensation benefits but provides a snapshot of the types of benefits available to injured workers. What type of claims do you handle, and what is the process for making a workers’ compensation claim in SC? I handle both personal injury claims and workers’ compensation claims in my practice. While I prefer to become involved in workers’ compensation claims as soon after the injury as possible, an injured worker has two years from the date of injury to file a claim. In order to initiate the claim, we must file a form with the South Carolina Workers’ Compensation Commission within two years from the date of injury. What are SC workers’ compensation laws designed to do? Workers’ compensation laws are designed to protect injured workers. Importantly, our state case law holds workers’ compensation law is to be liberally construed in favor of coverage for the injured worker. If an individual is injured on the job and eligible for workers’ compensation benefits, there are 3 main benefits that South Carolina workers’ compensation is a “nofault” system. What does this mean? If an employee is injured at work, even by his own fault, that employee is still entitled to workers’ compensation benefits so long as the injury occurred during the course of, and in the scope of, his employment. For example, if a roofer loses his balance and falls from the roof of a house he is working on because he becomes distracted by an airplane flying overhead, that roofer is entitled to workers’ compensation benefits even though his employer was not at fault. Oftentimes, employees are scared to bring workers’ compensation claims against their employers because they think they are “suing” their employers. While the employer is named in the claim, a workers’ compensation claim is equivocal to an insurance claim. By filing a workers’ compensation claim, the injured worker is not saying his employer did anything wrong, just that he was injured in the course and scope of his employment and is therefore entitled to benefits. South Carolina Workers’ Compensation – Key Updates Employees Need to Know Catie Meehan An Interview with... Workers’ compensation laws are designed to protect injured workers.
Catie, you have an extensive background in the medical field with degrees in both psychology and nursing, in addition to your law degree. What are the common reasons why workers’ compensation claims in SC are denied – and how can you avoid them? One of the most common reasons workers’ compensation claims in SC are denied is pre-existing conditions. If an insurance carrier learns that an injured worker previously had an injury or treatment to the same body part injured in the work accident, the carrier may deny the claim. The important thing to know here is that under SC law, an aggravation to a pre-existing condition is compensable. So, even if an injured worker had an injury or treatment to the same body part in the past, if the work accident caused symptoms to resurface or to worsen, the worker is entitled to workers’ compensation benefits. One factor that is considered is the duration of time elapsed between past treatment for the injured body part and the date of the work accident. A lawyer specializing in workers’ compensation can be very beneficial in helping navigate these issues. I’m concerned that my employer may fire me in retaliation for filing a workers’ compensation claim in South Carolina. What should I do, and would a claim affect future employment? Although SC is an at-will employment state, an employer cannot fire an employee simply because he sustained a work-related injury. In terms of future employment, if a treating physician assigns permanent work restrictions to an injured worker, this may affect the worker’s ability to return to his pre-accident job or secure alternative employment in the future. If an injured worker is unable to return to his preaccident job as a result of permanent work restrictions, arguably, that individual’s disability from the workrelated accident may exceed the medical impairment assigned by the physician. Furthermore, if an injured worker’s permanent work restrictions preclude him from returning to the type of work he has performed in the past, he may be entitled to additional compensation at the conclusion of his case. Can I pursue a civil action in addition to my workers’ compensation claim in South Carolina? It depends is the short answer. In South Carolina, an employee cannot sue her employer for negligence except in very limited circumstances. So, if an employee is injured on the job, many times the sole remedy against the employer is a workers’ compensation claim. That said, if an employee works in a factory and is injured by a faulty machine, which a separate company is responsible for maintaining, he may have a workers’ compensation claim against his employer as well as a negligence claim against the third-party company that failed to adequately maintain the machine. Similarly, if an employee is injured while in the course and scope of his employment in a motor vehicle collision that was caused by another driver, he would have both a workers’ compensation claim with his employer as well as a negligence claim against the at-fault driver. Do you have any tips on getting workers’ compensation benefits in SC? The most important “tip” I have for injured 24 LAWYER MONTHLY MAY 2024 One factor that is considered is the duration of time elapsed between past treatment for the injured body part and the date of the work accident.
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