Will Contests

A Will can always be contested, but the result can be uncertain. You have to have a basis to contest a Will; you must show that there is either something wrong with the Will or that there was something wrong about the conditions under way the Will was made. For example, you can challenge a Will by claiming that:

* the Will does not meet formal requirements, such as proper signatures or witnesses;
* the person signing the Will did not have the capacity to make a Will; or
* the person signing the Will did so under suspect conditions, like fraud, mistake, or undue influence.

If the Will you want to contest includes a “no contest” clause, you may risk losing any inheritance the Will provides to you. Many Wills contain a no contest clause which says something along the lines of “I disinherit anyone who challenges this Will.” No contest clauses are meant to discourage Will contests by disgruntled heirs.

In reality, however, good faith challenges are rarely thwarted by a no contest clause. So if you have good reason to contest a Will, a no contest clause shouldn’t deter you. Also, the likelihood of a court upholding a no contest clause varies greatly by state and by circumstance. So just because a Will has a no contest clause doesn’t necessarily mean it will be enforced.

A more practical risk to a Will contest is the time and money that it will cost to mount the challenge. To challenge a Will, you’ll need to hire a lawyer and pay court fees. And the issue will likely take months, if not years, to resolve. Will contests are complicated and you will need the help of an experienced lawyer. Give us a call at 253.858.5434 if we can be of service to you, your family, friends, neighbors, or co-workers.

Boise Meetings, May 26th and 27th

Idaho Clients, Colleagues & Friends - I'm going to be in Boise May 25-29 and have time to meet with new or existing clients on Thursday the 26th or Friday the 27th. Give us a call at 253.858.5434 to set something up!

Handling Wage Garnishments for Small Businesses

Handling an employee's wage garnishment can be challenging for small business owners. When notified of the need to garnish wages by a court, business owners aren't always clear on their responsibilities and obligations.

A wage garnishment is any legal procedure where some portion of a person's earnings is withheld by an employer for the payment of a debt. Situations that incur wage garnishment typically include judgments, child support, and unpaid taxes.

When an employer receives a Writ of Garnishment, the employer is obligated to make the appropriate deductions from the employee's wages and direct payments to a designated agency or court. Wage garnishments are time-sensitive and failure to timely process the garnishment can lead to penalties.

Having your business's lawyer help you process an employee's wage garnishment can protect you against undue liability and lawsuits. We can help you interpret the Writ of Garnishment, accurately calculate the deductions, and assure that payment is timely made to the appropriate agency or court. Give us a call at 253.858.5434 to find out how we can help!

7th Anniversary Party

This weekend marks the 7th anniversary of the founding of the Law Offices of P. Stephen Aita, PLLC, so if you're in the Tacoma/Gig Harbor area around 6:00 this Friday, April 29th, come to 7 Seas Brewing Co. (3006 Judson Street in Gig Harbor) and join us in raising a glass to seven great years!

"Super Wills"

You know what term I like? "Super Will." In 1998, Washington became the first state to pass a "Super Will" law (technically the Testamentary Disposition of Nonprobate Assets Act, RCW Chap. 11.11). Washington's "Super Will" law allows you to make provisions in your Will that govern the beneficiaries of nonprobate assets. Previously-designated beneficiaries of nonprobate assets may be overridden by the provisions naming beneficiaries in your Will, if the Will expressly describes the nonprobate assets at issue.

To effect control of a nonprobate asset with a Super Will, a Personal Representative must notify the financial institution holding nonprobate assets, the nonprobate beneficiaries, and the testamentary beneficiaries in the form provided in the statute. Without such notice, the financial institution holding the nonprobate asset may rely on the form of the nonprobate asset and its beneficiary designations.

If a nonprobate beneficiary receives a nonprobate asset to which he is not entitled because of a Super Will's provisions, the testamentary beneficiary or Personal Representative may petition the court for control of the asset. Where a financial institution holding a nonprobate asset is aware of a dispute contesting right to the nonprobate funds, the financial institution may hold the nonprobate asset until it receives an Order from the court or an agreed consent of all nonprobate and testamentary beneficiaries. The financial institution may also require a bond from the person to whom it makes transfer of the nonprobate asset in twice the amount of the asset's value.

This is complex, I know, but Super Wills can be a pretty cool estate planning tool, depending on the client's particular circumstance. If you have questions about Super Wills, or any other aspect of estate planning, give us a call at 253.858.5434 to see how we can be of service.

Probate and Estate Settlement

Probate and estate settlement is the legal process by which debts are paid and assets are distributed following a death. We can help you organize your deceased loved one’s assets and liabilities, educate you about the probate process, and handle all communication between various third parties. We also represent fiduciaries and beneficiaries in trust and estate settlement negotiations and disputes.

A Personal Representative is required to settle the estate while complying with the terms of Will, if available, and state probate law. We provide helpful guidance in the following matters:

* Determining and initiating procedures with the Superior Court (in Washington) or the District Court (in Idaho) in the proper county;
* Meeting statutory deadlines;
* Notifying creditors, beneficiaries, and heirs;
* Satisfying creditors’ claims;
* Distributing property; and
* Fulfilling requirements to close the probate estate.

If 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 thoughout Washington and Idaho and are available to meet in person, by phone, or via Skype or FaceTime.

Four Mistakes to Avoid in a Family Business

Running a family business is the most natural thing in the world--and the most unnatural. Handle it well, and it can make you rich, capitalize on bonds no ordinary colleagues could share, and keep your family employed for generations. Handle it badly, and it can instead keep lawyers like me employed for years.

If you've committed any of the following oversights, take care of them as soon as you can make a date with your lawyer. And if you're considering launching a company with your family members, don't even think about cutting corners and making these potentially fatal mistakes:

1. You mix your family finances with the business's.

A lot of family businesses start out as a side job or a hobby that eventually turns into a money maker. When you start to outgrow that stage, you need to look into creating a legal entity like an LLC or a corporation. This is especially important if a number of family members might be liable, as would be the case if, say, they signed for loans or contributed cash or otherwise could be considered partners. Without this protection, you all could end up bankrupt if something goes wrong.

For most small family businesses, an LLC is a great choice. It gives personal liability protection like a corporation, without formalities like a Board of Directors. An LLC is taxed as a pass-through entity, so business profits flow through to the owners and the LLC pays no separate tax on profits. Also, having a legal entity allows for easier transition planning.

2. You muddle along with no employment agreements

You may not want to discuss with Dad what will happen if he calls in sick too many times or with Grandma how much she has to pay you, but everyone in a family business has to make their expectations clear early on--about employment, operations, even dissolution. And you have to put the agreements in writing. It may seem awkward to talk about it now, but it will be ten times more awkward after something goes wrong. And something will.

3. You never bother to get the license.

For most businesses, you have to obtain state and city licenses. Zoning permits or variances may also apply, particularly if you allow customers to visit your home office. It's usually pretty easy to find out the requirements--one visit to the state Dept. of Licensing website can get you all the information (and forms) you need. Business licenses are often inexpensive, but if you're operating without one, the fines can be pretty costly.

4. You have no succession plan.

The last thing you want to think about in a family business is what will happen to the company if you are hurt or die. It's no fun to think about, but you should consider who will run the business, either temporarily or permanently, if you can't run it. Spend time with this person and get them acclimated to what you do and how you do it--introduce them to vendors, suppliers, payroll, payment issues, website access, and a host of other contacts and tools they will need to take over. Let others know you've designated a successor and mention it in your Will.

Remember that if you do not have a formal business entity like an LLC, your business technically passes with you. With the right structures in place you can leave your ownership (or fractions of it) to your loved ones in your Will, and they can keep running the business without interruption. After all, that was the point of having a family business in the first place, wasn't it? To keep it in the family.

If you're thinking about starting a family business, give us a call at 253.858.5434 to see how we can be of service.

Taking Pictures Following an Auto Collision

If you've been in an auto collision, one of the best ways to protect your rights is to gather evidence as soon as possible. That way, you'll be prepared if you end up making a personal injury claim against the other driver.

If you are in a condition to take pictures immediately after the collision and have a camera or your phone handy, you should take pictures of the accident scene. Take pictures of the area of the collision from all directions--close-ups as well as pictures from further away. You never know at that moment which angles best illustrate the accident scene, so it is always best to take pictures from as many angles as possible. If either or both vehicles left skid marks, definitely take pictures of those. This is where you want to shoot from further away so that you can have a panoramic view of the skid marks.

You also want to take pictures of any traffic control devices (e.g., traffic lights or stop or yield signs) at the scene. In your pictures, you want to make clear who had the light or the stop sign.

If you think that someone’s view of the accident scene will be relevant, you would want to take pictures that show the view. For example, if the other driver told you after the collision that he or she couldn’t see you coming, you would want to take pictures that showed how far back the other driver had a view of the accident scene. Remember that, in auto collision litigation, a picture truly is worth a thousand words. If the other driver said that he or she couldn’t see the location, but the pictures show that he or she had a clear view of the location for five hundred feet, then the other driver is likely going to lose because the insurer and the jury will think that he or she simply wasn’t paying attention.

You should also take pictures of both (or all) vehicles involved in the collision. Specifically, you want to photograph the areas of damage from afar and also close-up. The damage to the vehicles can tell insurers and juries a lot about how an auto collision occurred, how fast the drivers were going, and who was at fault. So make sure to get good pictures of the vehicle damage.

Finally, if you were injured, get pictures of your injuries. Pictures of bruises, contusions, wounds, etc. are very powerful tools in convincing an insurance adjuster or a jury about the extent of your injuries.

If you've been injured in an auto collision and have questions about how we can help, give us a call at 253.858.5434 to set up an appointment for a free initial consultation.

"Wills and Estates Law in the Digital Age"

Attended a really interesting webinar last night called "Wills and Estates Law in the Digital Age," covering topics like transferring and accessing digital assets and content when someone dies or become incapacitated. Everyone has digital accounts somewhere, right? If you die or become incapaciated, who has access to your email accounts, digital music, digital photographs and videos, software licenses, social network accounts, file sharing accounts, financial and online banking accounts, domain registrations, DNS service accounts, web hosting accounts, tax preparation service accounts, online stores, or online medical information, and who is the "owner" of that data? And how does that work with federal and state privacy laws?

If you have questions about this evolving area of estate planning, or if we can be of other service to you, your family, friends, neighbors, or co-workers, give us a call at 253.858.5434. We proudly serve clients throughout Washington and Idaho and are avaialable to meet in person, by phone, or via Skype or FaceTime.

Seattle Meetings

Clients and Colleagues - I will be working in Seattle all day next Wednesday (April 6th) and still have a couple time slots available for meetings in the afternoon. If you would like one, give us a call at 253.858.5434 to set something up.

Contract Drafting & Contract Disputes

If you own a small business, we can help in a number of ways. We assist business clients in developing the appropriate contracts and agreements that will allow their business to run smoothly and grow. If, in the future, a dispute arises regarding a contract, we can help resolve the disagreement through mediation or trial. We can assist with:

* CONTRACT DRAFTING: Whether it is employment contracts, non-compete agreements, confidentiality clauses, partnership agreements, severance packages, service contracts, or other operational documents, we have the skills necessary to prepare these documents. We understand that the best way to avoid conflict in the future is by drafting accurate and complete documents in the present.

* CONTRACT DISPUTES: If disputes do arise over contracts, it is important to seek the counsel of an experienced lawyer. Our understanding of contract drafting and business law allows us to carefully examine a dispute and fully realize the obstacles.

If 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.

Alternative Dispute Resolution

The traditional litigation process which ends with a jury trial is an important means of resolving disputes and, for many cases, may be the appropriate alternative. In other cases, however, litigation may be less desirable because of the cost, delay, publicity, and lack of control over the outcome. We can achieve favorable outcomes for our clients who would be better served if their case were resolved outside the courtroom. Some of the more common alternatives to the traditional litigation process include:

* Arbitration (involves the selection of one or more neutral third parties who render a binding decision following the presentation of evidence; may be compelled by court rule or by agreement of the parties, who typically share the expense)

* Mediation (involves the use of a skilled neutral third party who does not have the power to impose a solution, but assists the parties in arriving at their own confidential solution; parties retain ultimate control over the process and the resolution that may occur)

* Negotiation (involves negotiation between the parties, with the assistance of their respective attorneys; the most widely used form of alternative resolution, with more than 90% of all disputes, both civil and criminal, resolved before trial)

If you have a dispute that might be better resolved through Alternative Dispute Resolution rather than litigation, give us a call at 253.858.5434 to see how we can help.

Avoiding Probate for Timeshares

Timeshares can be a headache for estate planning and probate lawyers as well as their clients. If not treated appropriately, they can cause excess time and fees for everyone involved. Many timeshares are actual interests in real estate; other timeshares are a contractual “right to use." If a person dies with a timeshare interest in their name, there may have to be an additional probate in the state where the timeshare is located. This is called an "ancillary" probate and can cost several thousand dollars in attorney fees and court costs.

The easiest way to avoid this problem is to set up a Revocable Living Trust. We can help you in creating the Trust. Once the Trust is created, you transfer the timeshare interest into the Trust and the Trustee becomes the legal owner of the timeshare. As the beneficiary of the trust, you can use the timeshare while you are alive. Upon your death, the Trust continues to be the owner and probate is not required. The timeshare interest will then be transferred to the remainder beneficiaries according to the terms of the Trust.

If you own a timeshare, it is important to contact an estate planning lawyer and put the timeshare in a Living Trust so you do not inadvertently burden your loved ones. If you have inherited a timeshare, it is important to contact a lawyer in the jurisdiction where the timeshare is located to determine your options. Give us a call at 253.858.5434 if we can be of service to you, your family, friends, neighbors, or co-workers.

Boise Meetings

Idaho Clients, Colleagues, and Friends - I will be in Boise April 8-10 and have some time available to meet with new or existing clients in the afternoon on Friday the 8th. If you would like to get together, give us a call at 253.858.5434 to set something up.

Seattle Meeting

Clients and Colleagues - I will be working in Seattle all day next Wednesday (March 16th) and still have a couple time slots available for meetings in the afternoon. If you would like one, give us a call at 253.858.5434 to set something up.