Idaho Clients & Colleagues - Steve will be in Boise January 12-14 and has some time to meet with clients and potential new clients in the afternoon on Friday the 12th. Give us a call at 253.858.5434 to set something up!
Probate is how an estate gets settled under the supervision of the court. A person, usually a surviving spouse or an adult child, is appointed by the court if there is no Will, or nominated by the deceased person's Will. Once appointed, this person, called a Personal Representative, has the legal authority to gather and value the assets owned by the estate, to pay bills and taxes, and, ultimately, to distribute the assets to the heirs or beneficiaries.
The purpose of probate is to prevent fraud after someone's death. Imagine everyone stealing the castle after the Lord dies. It's a way to freeze the estate until a judge determines that the Will is valid, that all the relevant people have been notified, that all the property in the estate has been identified and appraised, that the creditors have been paid, and that all the taxes have been paid. Once all that's been done, the court issues an Order distributing the property and the estate is closed.
Not all estates must go through probate though. First, if an estate falls below a certain threshold, it is considered a "small estate" and doesn't require court supervision to be settled. Second, not all assets are subject to probate. Some kinds of assets transfer automatically at the death of an owner with no probate required. The most common kinds of assets that pass without probate are:
* Joint Tenancy Assets-when one joint tenant dies, the surviving joint tenant becomes the owner of the entire asset, without the need for a court order. This is called "right of survivorship." For example, if a house is owned this way, "Jane Doe and John Doe, as joint tenants," and Jane dies, John owns the entire house.
* Community Property With Right of Survivorship-these are forms of property ownership that function like joint tenancy, in that the survivor owns the entire property at the death of the other tenant, but are only available to married couples.
* Beneficiary Designations-retirement accounts and life insurance policies have named beneficiaries. Upon the death of the account or policy owner, these beneficiaries are entitled to the assets in the account or the proceeds of the policy.
* Payable on Death Accounts/Transfer on Death Accounts-bank and brokerage accounts can have designated beneficiaries, too. The account owner can fill out forms to designate who should receive the account assets after their death.
Third, if a decedent had created a Living Trust to hold his or her largest assets, than that estate, too, won't go through probate, unless the assets left outside of the trust add up to more than Washington's small estate limit. That, in fact, is why that Living Trust was created, to avoid probate after the death of the trust's Grantor.
But for estates in Washington that exceed the small estate's threshold, and for which there is either no Will, or a Will (but not a Living Trust), probate will be required before an estate can be tranferred to the decedent's heirs or beneficiaries.
The general procedure required to settle an estate via probate in Washington is as follows:
The Will must be filed with the Superior Court.
A Petition for Probate must be filed with the probate court as well. This requests the appointment of a Personal Representative. If there is no Will, the Court will appoint someone to serve as the Personal Representative of the estate.
The Court will issue "Letters Testamentary" to the Personal Representative--this gives the PR legal authority to act on behalf of the estate. In certain circumstances, the Petition can request that the court grant the PR the power to administer the estate with non-intervention powers. This allows the PR to essentially administer and close the estate without court approval.
There's no requirement that the PR publish notice of the probate to notify all creditors of the proceeding, but there's an advantage in doing so: that way creditors only have four months to make a claim. If the PR does not publish, this claim period extends for two years.
An inventory of the estate's assets must be prepared, listing the estate's assets.
Once all of the creditors and taxes have been paid, a Declaration of Completion is filed with the Court.
The PR is entitled to reasonable fees for their services based on the size and complexity of the estate, but since such fees are subject to income tax, many PRs forgo the fees.
If you have questions about how the probate process works in Washington, give us a call at 253.858.5434 to see how we can be of service.
Special Needs Trusts (also known as "Supplemental Needs Trusts") allow a disabled person to receive gifts, lawsuit settlements, or other funds and not lose eligibility for government programs such as Medicaid and SSI. Special Needs Trusts are drafted so that the funds will not be considered to belong to the beneficiary in determining eligibility for public benefits; they are designed to be supplemental rather than to provide basic support. Their purpose is to pay for comforts... and luxuries that could not be ordinarily paid for by public funds. These trusts typically pay for things like education, recreation, travel, entertainment, counseling, and medical attention beyond the simple necessities of life. While a trust can grant the trustee with discretion to provide basic as well as supplemental needs, great care must be taken in the drafting so that benefits are not inadvertently removed due to the existence of the trust.
Supplemental needs can include medical and dental expenses, specialized equipment such a specially equipped van, training and education, insurance, transportation, electronic equipment and appliances, computers, vacations, movies, payments for a companion, and other self-esteem and quality-of-life enhancing expenses.
There are two basic types of Special Needs Trusts: self settled or grantor trusts, and third party trusts. A self-settled trust is frequently established by individuals who become disabled as the result of an accident or medical malpractice and later receive the proceeds of a personal injury award or settlement. A third party trust is usually created by a parent or other family member for a child with special needs, either during their life or set up in a Will.
While relatively simple in concept, the drafting and administration of Special Needs Trusts is subject to numerous complex administrative regulations, and Special Needs Trusts have varying tax implications for the beneficiary.
Congress recently passed the ABLE Act, and Gov. Inslee signed it into law recognizing ABLE Accounts here in Washington in 2015 (Idaho does not yet recognize ABLE Accounts, unfortunately). While this is a tremendous accomplishment, like all things, no one thing will be right for everybody. A properly drafted and implemented Special Needs Trust may still be a better vehicle for asset protection for those with disabilities.
If you have questions about Special Needs Trusts or ABLE Accounts, give us a call at 253.858.5434 to see how we can be of service to you, your family, friends, neighbors, or co-workers.
According to the Greater Tacoma Community Foundation and the City of Lacey, St. Peter's Hospital in Olympia is asking for blood donations following the fatal Amtrak derailment near Lacey this morning. Several locations in the area are open for donations, including Bloodworks Northwest and directly at St. Peter’s.
When you've been injured in an auto collision that was someone else's fault, your job is to follow your doctor's orders and concentrate on getting better. Hire a lawyer to deal with the insurance claims for you. Your lawyer will investigate the collision and your injuries, will negotiate with the at-fault driver's insurance company, explaining any liability issues, describing your injuries and how they've affected your life, and outlining your damages, hopefully leading to a mutually agreeable settlement of your claim. If the parties can't agree, your lawyer will then bring a lawsuit on your behalf to have your case heard by a judge and jury.
If you, a family member, friend, neighbor, or coworker has been injured in an auto collision, give us a call at 253.858.5434 to make an appointment for a free initial consultation.
We serve as general counsel for numerous small businesses and their owners, nonprofit organizations, and churches. We assist these clients with their business formation and governance, contracts, leases, policies, and litigation when necessary. If you own a small business and need legal advice, give us a call at 253.858.5434 to see how we can be of assistance. We proudly serve clients throughout Washington and Idaho and are available to meet in person, by phone, or via Skype or FaceTime.
Probate is the legal process of settling a person's estate once they die; paying creditors and transferring the remaining assets to the heirs and beneficiaries. If you've heard of probate, what you may have heard probably wasn't positive. There are many misconceptions about the process.
MISCONCEPTION #1: PROBATE SHOULD BE FEARED AND AVOIDED. It is true that, in some states, probate can be a difficult and expensive process. Fortunately, that's not the case in Washington or Idaho. Probate in Washington and Idaho is much easier than in other states, and often the appropriate process for administering an estate. It can be necessary and helpful in some situations, like where a Supplemental Needs Trust needs to be established for a disabled child who receives public benefits. Complicated estates with considerable assets are typically best handled via probate. If the estate needs creditor protection or there is dissension among the heirs and beneficiaries, the oversight of the court and probate law will minimize difficulty for the estate.
MISCONCEPTION #2: PROBATE IS ALWAYS A LONG, DRAWN-OUT PROCESS. Many people believe that probate is synonymous with lengthy court proceedings. This is usually not true. Depending on the language of the Will or if the court allows, the Personal Representative can serve with nonintervention powers, which means with legal authority to act without court oversight unless necessary.
Sometimes the length of probate depends on whether it is desirable to utilize the benefits of the creditor protection laws, which require the Personal Representative to notify reasonably ascertainable creditors of the impending probate proceedings, but restricts the amount of time they have to present their claims.
A typical probate in Washington or Idaho should last 6 to 9 months.
If you have questions about probate and how we can be of service to you, your family, friends, neighbors, or co-workers, give us a call at 253.858.5434 to set up an appointment. We proudly serve clients throughout Washington and Idaho and are available to meet in person, by phone, or via Skype or FaceTime.
What does it mean when we say we practice in the area of "estate planning"? This means we advise clients regarding the manner in which they wish to leave their property to their families, friends, or charities; estimating the tax consequences of implementing their goals and advising them regarding alternative methods by which those goals may be carried out; preparing documents necessary to implement their plans; and supervising execution of documents and implementation of their plans. This can include preparing Wills, Trusts, Powers of Attorney, Community Property Agreements, Health Care Powers of Attorney & "Living Wills," and other types of tools and techniques.
If you, a family member, friend, neighbor, or coworker has questions about estate planning and would like to make an appointment, give us a call at 253.858.5434. We proudly serve clients throughout Washington and Idaho and are available to meet in person, by phone, or via Skype or FaceTime.
If you've been injured in an auto collision that was someone else's fault, it's important that you seek legal advice sooner rather than later. The at-fault driver's insurance will immediately start its investigation of the crash and your injuries and will begin preparing to find reasons to give you as little money as possible.
As personal injury lawyers, our job is to see that justice is done and you're compensated for your losses, including medical bills, lost wages, and property damage, as well as pain and suffering, emotional distress, and loss of enjoyment of life. We will investigate your collision and your injuries, will deal with the insurance company on your behalf, and attempt to negotiate a fair and equitable settlement. If we can't reach a settlement with the insurance company, we will file a lawsuit and take your case to trial in front of a judge and jury.
Give us a call if you have questions about your auto collision case. Call 253.858.5434 to set up an appointment for a free initial consultation.
If you're a small business owner, your lawyer is here to protect you by predicting future problems, and either steering you away from these situations or putting the necessary documents in place to protect you going forward.
PARTNERSHIP AGREEMENTS. Most partners forget that a simple handshake doesn’t cut it. At some point, you want to transfer everything that was scribbled down on that napkin into a more formal agreement. It could be called a Partnership Agreement or Operating Agreement (where you organize as a LLC). Whatever you want to call it or however you decide to organize, just know that having an agreement that reflects everyone’s rights and obligations is a must. Of course, you also want to plan ahead for when a partner leaves. Typically, your lawyer will include a break up provision in the Operating Agreement detailing the necessary asset or ownership split.
KEEPING TRACK OF ORGANIZATION DOCUMENTS AND PAYING ANNUAL FEES. This is probably the one thing you will profusely thank your lawyer for because keeping track of documents and annual fees is definitely a pain. Your lawyer can also act as your organization’s registered agent, and in the event that anything comes up (e.g., legal complaints or summons) that needs attention, you know that by having your lawyer as your registered agent, he or she will address the situation immediately. And in the event that you are still figuring out how your business is going to operate, your lawyer will advise you on which form of legal organization is best for your business based on your size, location, ownership, liability, tax, and financial concerns.
DRAFTING CONTRACTS. contracts are important! But it’s a good thing you thought about hiring a lawyer, because they are there to help you with any contract that might come up. Initially, this will include basic employment or freelancer contracts, as well as intellectual property agreements.
LITIGATION. This is probably the only time you will really want your lawyer to be a jerk. It’s because they know how to handle (read: get rid of) disgruntled customers, vendors, etc. Whether you are at fault or not, you probably want to avoid litigation at all costs and your lawyer will help with that. They will also advise you on whether settling is a good idea or not, and perhaps even be able to convince the other party to drop the lawsuit.
PROTECTING TRADE SECRETS OR CONFIDENTIAL INFORMATION. Sometimes trade secrets or confidential information gets out and you may no longer have a business. That’s when a lawyer steps in and uses legal tools (aka the nasty letter) or an injunction to stop any further misuse. More importantly, in order to avoid confidential information getting out in the first place, your lawyer will draft a confidentiality agreement that will specifically prohibit misuse of confidential information.
ON-SITE. Lawyers can help you during conferences or other marketing events that require media release waivers, liability waivers, contests, etc. Remember the pages of waivers you signed before attending that last conference? Yeah, a fancy pants lawyer wrote those!
You may not have the budget to keep a lawyer on retainer to consult every time you need to make a decision, but small business owners often forget to consider the legal implications of their decisions. We're here to help. We proudly serve clients throughout Washington and Idaho and are available to meet in person, by phone, or via Skype or FaceTime. Give us a call at 253.858.5434 to set up an appointment today.
Yeah, you can get free or cheap legal forms online. But should you? We've litigated cases where people have used Do It Yourself legal documents to draft a trust agreement, a commercial lease, and a business purchase & sale agreement, none of which turned out like the parties had hoped, mainly because the online forms were outdated, insufficiently executed, or failed to include material terms, wound up costing thousands of dollars more (or in one case, tens of thousands more) to fix the problems the DIY documents caused than if they had been done right in the first place.
What it comes down to is that every person is unique and every situation is different; there's no one-size-fits-all legal document. Sure, lawyers start out using a form as a template, but again, every client and circumstance is unique and therefore requires a unique legal solution.
If you need help drafting legal documents that fit your specific situation and are more likely to be enforceable in court, give us a call at 253.858.5434 to set up an appointment. We proudly serve clients throughout Washington and Idaho and are available to meet in person, by phone, or via Skype or FaceTime.
Look, we recognize that as a profession, when we write, lawyers have a bad reputation for being overly technical, verbose, and confusing. Here at the Law Offices of P. Stephen Aita, we don't believe that's the right approach to legal writing. Writing in plain English and legal writing have the same goal: communicating complex ideas in an understandable and manageable form. As Justice Thomas once said, the “beauty is not to write a five cent idea in a ten dollar sentence” but rather “to put a ten dollar idea in a five cent sentence.”
We do our best to write contracts, letters, Wills, and pleadings with minimal legalese. We believe in the revolutionary idea that our clients should actually understand what we're saying and what they're signing. We actually had the brother of a friend call this week just so we could interpret and explain for him the things his lawyer in California was writing to him!
If you want to hire a lawyer whose priority is making sure you understand what's going on with your own legal matter, give us a call at 253.858.5434 to see how we can help. We proudly serve clients throughout Washington and Idaho and are available to meet in person, by phone, or via Skype or FaceTime.
Needless to say, our office will be closed November 23-26 to celebrate Thanksgiving. We'll be back at it on Monday the 27th. Everyone have a great holiday weekend!
If you've been named Executor in someone's Will, it's a good idea to hire a lawyer to represent you and the estate. Initially, the lawyer files the Will and the probate petition with the Court to appoint someone as the Executor (now called the "Personal Representative" or "PR"). The lawyer's job is also to handle all other required proceedings in court. For example, the lawyer may file or defend a Will contest to decide who becomes PR. The lawyer deals with creditors’ claims and also gives notice to creditors, and heirs, beneficiaries, and other people who are entitled to receive notice of the probate.
After all the various administrative tasks have been completed, the lawyer prepares and files either a Declaration of Completion or a Petition for Final Distribution. Both of these documents report to the Court what the PR has done during their term of administration. The final probate pleadings account to the heirs for the assets and money that have come into the personal representative’s hands.
The lawyer may further deal with the lawyer handling an ancillary probate if any property is owned in another state. Non-probate issues can also arise which require legal attention, like getting, receiving, or obtaining payment of life insurance and dealing with things like payment of annuities.
One of the purposes of lawyer is to advise the PR regarding his or her legal duties and make sure those duties are carried out. A PR is a fiduciary to the heirs and beneficiaries of the estate. This means that the PR has a duty of care to those people and is required to set aside his or her personal interests in favor of the beneficiaries.
One primary task that must be done is preparing and filing a full and final account of what the PR has done during their term as PR. This includes information about bank accounts and deposits, amounts received, bills paid, dispositions of stocks and bonds including gains and losses on sales, sales of securities and receipts of dividends or losses on the sales. Accountings can become quite complicated. If nothing else, most PRs eventually use a lawyer to perform the accounting function at least.
Often, in more complicated estates, an accounting firm that is familiar with court accounting requirements is hired to do the actual accounting. The lawyer receives and reviews the accounting and drafts a petition for final distribution and accounting. This way, the heirs are informed regarding what went on in the estate, and how much each is entitled to.
Probating an estate can be difficult and complicated. If a friend or loved one has passed away and named you as their Executor, we can help make the probate administration process as painless for you as possible. Give us a call at 253.858.5434 to set up an appointment to see how we can help.
We recently got to collaborate on an estate plan with a lawyer in the UK. Our client is an immigrant and now a U.S. citizen, but still owns her family's house in Scotland. It was interesting to see how the laws of Wills and inheritance in the U.S. and the UK are so closely related yet different - where Washington law has clearly descended from English and Spanish law yet has evolved with the times, the law in Scotland is much the same as it was 300 years ago.
And this is also a good opportunity for us to remind you that people who own real estate in more than one country - or even more than one state - have special estate planning needs. We can help with that. Give us a call at 253.858.5434 to make an appointment.