Guiding You Through the Probate Process

When someone dies, their property must be distributed and their creditors paid. The distribution process is typically done through "probate." Probate requires someone acting on behalf of the deceased person (the “decedent”) to gather property, notify and pay off creditors, pay taxes, and distribute the remaining property to the decedent’s heirs according to his or her Will.

The Will is filed with the Court (Superior Court in Washington; District Court in Idaho). The Court will then issue Letters Testamentary to give someone the ability to act on behalf of the estate; this person is known as the Personal Representative of the estate. Probate can be an expensive process because it is done through the court system. Proper estate planning can allow an individual to avoid to costs associated with probate.

If a person dies with a Will, the person is considered to have died "testate." A person that dies without a Will is considered to have died "intestate." Dying testate or intestate requires the deceased’s property be distributed. If the person dies intestate, then the state determines how the property will be distributed, therefore we recommend that you hire an estate planning lawyer to avoid having the State determine who gets your property.

If you have been giving notice of a probate filing regarding your loved one, it may benefit you to retain an attorney to represent your interests. If you believe that the your loved one had different plans for their distribution of property, we can help you challenge a Will or Trust. Challenging a Will or Trust requires showing that the decedent was susceptible to influence and was indeed taken advantage of. Contact us for more information regarding your situation.

We can help guide you through the probate process. We understand that probate can be an emotional process and we seek to provide quality service so that you have peace of mind knowing your loved one’s estate is being handled properly. Contact us today at 253.858.5434 if you need help with the probate process.

Everyone Needs an Estate Plan

At some point, everyone will need and use their estate planning documents. Estate planning has very little to do with wealth. It is about providing peace of mind knowing that you have taken care of the legal documents to help control the events that occur in everyone’s life. Why do you have car insurance? In case your car gets damaged or you or your family get injured in a collision, you have protection for you, your family, and your car. Why do you have homeowners insurance? In case something happens to your house, you have protection for you, your family, and your home.

You may never need to use your car or homeowners insurance. But you keep paying for them month after month, year after year, just in case you need to use them. However, everyone will need to use their estate plan. At some point, everyone will need to use a Health Care Power of Attorney, Health Care Directive, Will, or Trust and it is more likely you will need to use a combination of all of them. So shouldn’t you also have a plan in place that you know you will need and use to protect you, your family, and your loved ones?

If you have questions about preparing an estate plan, give us a call at 253.858.5434 to make an appointment. We proudly serve clients throughout Washington and Idaho and are available to meet in person, by phone, or via Skype or FaceTime.

The Importance of End-of-Year Charitable Giving

America's nonprofit organizations, and more importantly, those they serve, need your support. Why is charitable giving important to think about at the end of the year? Because the year-end holidays are a time of religious and moral reflection that inspire many people to reach out to those who are less fortunate. Less altruistically, but still just as important, donors need to make their end-of-year giving decisions by December 31st to qualify for a tax deduction in this calendar year.

We regularly advise our clients on informed philanthropy as part of their estate plans. As part of that advice, we offer the following 4-step checklist to help you maximize your end-of-year donations:

* REVIEW LAST YEAR'S CHARITABLE GIFTS: Before making new plans, take a look at the charities you supported last year to find out what they’ve accomplished. You’re not looking for a list of itemized expenses, but instead a progress report. If a charity in your giving portfolio can’t tell you what kind of results they created from your investment, then replace it with one that will.

* BE SPECIFIC: As you consider which charities to support this year, remember that there are roughly one million of them. That means you don’t have to settle for an organization that isn’t a perfect match for your beliefs and goals. No matter what cause you want to support—whether it is providing humanitarian aid to refugees, helping veterans find work, or finding a cure for a particular disease—there’s a charity out there that matches your intentions. Take the time to find it and confirm (not just assume) it offers the programs and services that match your charitable interests.

* LOOK UNDER THE HOOD: Before you give to any charity this year, be sure to check that the charity meets these three criteria:
*** Examine the charity’s finances: Financially healthy organizations - those that are both financially efficient and sustainable - have greater flexibility and freedom to pursue their charitable mission.
*** Ensure the charity is accountable and transparent: Charities that are an open book and that follow good governance practices are less likely to engage in unethical or irresponsible activities.
*** Look for signs of effectiveness: The charity's ability to bring about long lasting and meaningful change in the world is the key reason for their existence and for your donation so make sure you find evidence of its impact.

* CONCENTRATE YOUR GIVING: Diversification isn’t an important consideration when giving, like it is when investing in stock. A few well-placed larger donations go farther and have the potential to do more good than a wide array of smaller gifts. Besides, the bigger your gift, the more motivated you will be to do the necessary due diligence.

REMEMBER: If you want your charitable donations to be deductible on your 2016 tax return, gifts need to be made by December 31st. If you have questions about charitable giving as part of your estate plan, give us a call at 253.858.5434 to see how we can help.

Estate Planning & Probate Legal Services

Legal services related to estate planning and probate are a substantial part of our practice. This can include:

* Consultation regarding the manner in which clients wish to transfer their property to their families or charitable beneficiaries;
* Estimates of the tax consequences of implementing clients’ goals and advice regarding alternative methods by which those goals may be carried out;
* Preparation of documents necessary to implement clients’ plans, including Wills, trust agreements, powers of attorney, “living wills,” and other documents that may be required; and
* Supervision of execution of documents and implementation of clients’ plans.

Our relationships with our estate planning clients do not just end after the estate plan has been put in to place. After our clients’ estate planning documents have been signed, we are pleased to respond at any time thereafter to their request that we review their estate plans, or the then-applicable estate tax provisions and other relevant laws, for the purpose of determining whether we would suggest any changes. In fact, we recommend that clients consult us for that purpose at least once every three or four years or whenever their circumstances change in any material way.

If you have questions about preparing an estate plan, 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.

Washington Lawyers for the Arts' 5th Annual Art Law Institute on 12/5/16

Washington Lawyers for the Arts is putting on its 5th annual Art Law Institute on December 5 in Seattle. The ALI brings together artists and lawyers from all disciplines and backgrounds for a full day to discuss the state of the law. They'll give you a rundown of intellectual property law, publicity rights, entertainment, estate planning, and business law in general, as well as an overview of any developments that may have occurred within the past year. If you're an artist, author, musician, songwriter, or a lawyer who represents them, give us a call and we'll help you get signed up.

Representing Victims of Auto Collisions

Have you recently been injured in an auto collision and you're worried about your medical bills? Need to get your car fixed? We are experienced in many different types of auto collision cases, including:

* Rear-end collisions
* Drunk driving collisions
* Multiple-car crashes...
* Bike/car collisions
* T-bone collisions
* Fatal auto collisions
* Hit and run car crashes

If you've been in an auto collision, we will give you straight, honest answers. Our initial consultation is free, and we are always happy to answer questions for injury victims.

A car crash can take only a second, but the consequences can last for days, months, or even a lifetime. A drunk driver slams into your car head-on on the highway, resulting in a lifetime of chronic back pain. A tired truck driver doesn’t see your car when it merges onto the freeway, and now you can’t pay your bills and support your family. A distracted driver hits you in an intersection downtown, causing serious broken bones, nerve damage, or a traumatic brain injury. From the moment after a crash, you find yourself scrambling, trying to get money from the insurance company, struggling to return to work, drowning in medical bills, and facing the physical and emotional pain of your collision. This is where an experienced lawyer can help.

Chances are you have never dealt with a personal injury claim or serious accident before, but we have. Chances are you don’t have the time or legal information you need to take on the insurance company successfully, but we do. First of all, the worst thing you can do if you have been in an auto collision is to give a recorded statement to the other driver’s insurance company. Doing this can only hurt your case. So please, DO NOT talk to the insurance company until you have consulted a lawyer.

If you, a family member, friend, neighbor, or co-worker has recently been injured in an auto collision and needs legal advice, give us a call at 253.858.5434 to set up an appointment for a free initial consultation.

Drafting Nondisclosure Agreements

A friend of mine and I were talking about Rodney Dangerfield last night. You know what else often gets no respect? Nondisclosure agreements (“NDAs”). Small business owners may plunge into negotiations, revealing confidential information with no agreement in place. Well, like any contract, the NDA can provide vital protection, but should be drafted with care. Here are some tips to consider.

1. NATURE OF THE OBLIGATION. Naturally, the heart of the NDA is language prohibiting one party from wrongfully using or disclosing certain information received from the other. The NDA should require the recipient to use at least the same degree of care that it would use to protect its own confidential information.

2. MUTUAL vs. UNILATERAL. Your lawyer needs to know the types of information to be disclosed by each party. Obviously, the disclosing party wants stronger protection; the receiving party wants fewer restrictions. Nonetheless, in almost every case each party will disclose some sensitive information, so it almost always makes sense to include mutual confidentiality obligations.

3. PROTECTED MATERIAL. To protect confidential information, one must first define it. Often the NDA gives examples, such as “technical, financial, and business information” and states that it may be in oral, written, physical, or electronic form. It may be defined as anything that should “reasonably be deemed confidential” or may grant protection only if the information is marked as confidential.

4. MARKING REQUIREMENT. The receiving party may insist upon a marking requirement, but the disclosing party may reject such a requirement, as some employees or agents may fail to mark before disclosing and some information cannot easily be marked. As a compromise, you can state that confidential information must be marked as such, or identified as confidential in a subsequent writing.

5. EXCEPTIONS. The exact wording may vary, but it’s only fair that certain types of sensitive information are excluded, such as information available to the general public, or previously known, independently developed, or rightfully received by the recipient through legal means.

6. PERMITTED USE. The NDA should state that confidential information may be used only for a particular purpose, such as exploring the possibility of a business relationship between the two parties, and no other purpose. Of course, the terms of that relationship will be laid out in a separate agreement.

7. PERMITTED DISCLOSURE. NDAs typically contain an exception, permitting disclosure by the recipient to its lawyers, accountants, or employees who have a legitimate need to know or in response to a court order. You should make sure the legitimate "need to know" requirement is explicit. You can also insist that prior notice is required before any disclosure and any third-party recipients must agree to confidentiality obligations at least as strict as those stated in the NDA.

8. DURATION. It’s probably best to state two terms in the NDA. First, state a term for the entire NDA, because a contract with no stated term is often found to be terminable at will. Then, the confidentiality obligation may be described as lasting, “For the term of this Agreement and XX years thereafter.”

9. NO WARRANTIES. While it has nothing to do with confidentiality, it may be prudent to state in the NDA that all information is disclosed “as is” and without warranties. Such language may not ward off legitimate claims for fraud or concealment, but may give some protection against unmerited claims.

10. REMEDY FOR BREACH. The NDA should state that in the event of a breach, money damages would be insufficient and the parties agree injunctive relief is proper.

If you are a small business owner and have questions or would like help with a nondisclosure agreement, give us a call at 253.858.5434 to see how we can help. We proudly represent clients throughout Washington and Idaho and are available to meet in person, by phone, or via Skype or FaceTime.

Transfer on Death Deeds ("TODDs")

In 2014, Washington joined more than 20 states and D.C. in authorizing Transfer on Death Deeds ("TODDs"). A TODD offers a non-probate method of transferring an interest in real estate to one or more beneficiaries at the death of the property owner and thus can be a useful estate planning tool for those seeking to avoid probate. A TODD does not transfer any interest in the property until the owner's death and is fully revocable during the owner's lifetime as long as the owner has testamentary capacity. The TODD must: (1) contain the essential elements and formalities of a properly recordable deed; (2) state that the transfer to the designated beneficiary is to occur at the transferor's death; and (3) be recorded before the transferor's death in the public records in the office of the auditor of the county where the property is located.

If you have questions about Transfer on Death Deeds or other probate avoidance or estate planning techniques, give us a call at 253.858.5434 to see how we can help.

Semi-Annual Estate Plan Reviews

Guess what we're spending the day doing? Every October 31st and April 30th, we review our estate planning files and send review letters to clients. We review these files so that we can alert clients as to changes in state and/or federal laws which could affect them and indicate a need to update their estate plans. We recommend that clients regularly examine their estate plans and suggest such review be made at least once every 3-4 years, and more often if major changes in family size, relationships, or assets should occur.

If you would like a copy of our checklist of changes or occurrences that might warrant a change in your estate plan or if you think your estate plan should be reviewed or changed in any way, call us at 253.858.5434 for an appointment so that we can meet to discuss your needs and revise your estate plan accordingly.

Probate Overview

Probate is the legal process that is often required after someone dies. Probate gives someone, usually the surviving spouse or other family member, authority to gather the deceased person’s assets, pay debts and taxes, and eventually transfer assets to the people who inherit them. Probate in Washington and Idaho typically takes 6 months to a year, depending on some choices the Personal Representative ("PR") makes. It can take much longer if there is a fight over the Will or unusual assets or debts that complicate matters.

In broad overview, the PR's job is to: (1) collect and inventory the deceased person's assets and keep them safe; (2) pay valid debts and taxes; and (3) distribute the remaining property as the Will (or if there's no Will, state law) directs.

The PR should keep careful records of how estate assets are handled and distributed. The PR should also inventory estate assets and estimate their value, but the inventory does not have to be filed with the court unless an interested person requests it. Usually, the PR opens a checking account for the estate, and uses it for amounts that come into the estate and to pay estate expenses.

The PR has authority over any assets that go through probate. Probate assets can include real estate, bank and brokerage accounts, and personal belongings (for example, vehicles, jewelry, home furnishings, and art). Life insurance proceeds that are payable to the estate (not a named beneficiary) are also probate assets.

If the deceased person owned real estate in another state, the PR may need to conduct a second probate proceeding in that state. That’s called an "ancillary probate."

In Washington and Idaho, PRs can choose whether or not to publish formal notice to creditors. If the PR does publish the notice, and also sends it to all known creditors, creditors will have just 4 months in which to make claims against the estate. If they don’t, their claims will be barred. Otherwise, creditors have 2 years from the date of death in which to bring claims. A PR who is concerned about claims coming in later usually chooses to publish notice.

If there’s not enough money in the estate to pay all debts, the PR must turn to state law, which prioritizes claims. The family allowance has the highest priority, followed by probate expenses, funeral costs, and taxes. It’s also the PR's responsibility to file final income tax returns for the deceased person. These returns are generally due by April 15 of the year following the year of death. Income tax returns may also be required for the estate itself. A federal estate tax return will be required only if the taxable estate is very large—for deaths in 2016, the limit is $5.45 million. More than 99.7% of all estates do not owe federal estate tax.

The PR can distribute estate assets to beneficiaries only after debts and taxes are paid. The PR follows the instructions in the Will, or if there is no Will, turns to state “intestate succession” law to determine who inherits. A PR who has paid all debts, filed the required tax returns, and distributed all the estate assets formally requests the court to close the probate case. The process is simple if the personal representative gets all the heirs and beneficiaries to sign a Receipt and Waiver document. If they don’t, the personal representative will have more notices to give and documents to file.

If you have questions about the probate process in Washington or Idaho, give us a call at 253.858.5434 to see how we can help.

Representing Clients in Personal Injury Cases

A major part of our practice includes personal injury work on behalf of injured people or their survivors. We emphasize careful and swift pursuit of injury claims. These claims are often the result of automobile collisions or other types of negligence situations. Although we will always seek to prepare and structure a case for settlement, the filing of a lawsuit is often necessary.

As trial attorneys, we aggressively and efficiently follow the court rules to move a lawsuit as quickly as possible to jury trial or settlement. We place a high priority on complete, careful, factual, and expert evaluation of our clients’ claims.

We have made the commitment to handle a substantial number of cases on the basis of “no recovery—no fee.” We believe that people who are injured and possibly unable to work or afford attorney fees have a right to legal representation and access to the judicial system in order to recover adequate compensation for their personal losses.

If you or a family member, friend, neighbor, or co-worker has been injured in an auto collision and needs legal advice to deal with their claim, give us a call at 253.858.5434 to see how we can be of service.

How Lawyers Can Help Small Businesses

It's easy for small businesses to gloss over hiring a lawyer because other matters, such as marketing and operations, seem more pressing. Many legal issues may not be of immediate concern to small business owners who easily justify holding off on paying for these services. However, there are many ways that lawyers can help small businesses.

BUSINESS FORMATION.

Some of the most important matters are handled at the beginning of the business. For example, you may want to structure your business in a way that limits personal liability. Lawyers can help with the process of incorporation so that you are assured that your business starts on strong legal footing.

CORPORATE GOVERNANCE.

Even if businesses use a lawyer to help incorporate the business, they may fail to maintain this status. A lawyer can advise clients to have annual shareholder, director, or partner meetings in order to maintain this status. Likewise, certain types of businesses must record minutes and elect officers according to their state’s requirements. Failing to take these steps can have disastrous consequences for the business. If sued, the business stands to have its corporate veil pierced and exposes corporate officers to personal liability.

EMPLOYMENT AGREEMENTS.

While many businesses start as a single-person operation, many small businesses owners quickly learn that they need some help for their business to thrive. A lawyer can assist their clients by helping to draft employment agreements, including non-disclosure agreements, employment contracts for a specific duration and non-compete agreements. The last group mentioned often requires very specific catering to detail. Every state has specific rules regarding the duration of a non-compete agreement, the geographical proximity of such a contract, and the scope of the agreement.

CLIENT CONTRACTS.

As the business continues to grow and become more successful, it will take in new clientele. To protect the business, a lawyer may draft specific agreements between the business and the client. By having the terms written upfront, disagreements and misunderstandings can potentially be avoided.

COLLECTIONS.

When customers stop paying their bills, small businesses and their cash flow system can become crippled. A lawyer can help in collecting past-due accounts.

Even if a small business owner determines that going to small claims court is faster and cheaper, a lawyer may walk the client through this process and provide advice about how to present evidence and support the case.

If you are a small business owner and need legal advice in keeping your business running smoothly, 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.

Using a Special Needs Trust to Protect a Disabled Loved One's Benefits

If you have a child or grandchild with a disability and you want to leave them money or property, you must plan carefully. Otherwise, you could jeopardize their ability to receive Supplemental Security Income (SSI) and Medicaid benefits. By setting up a "Special Needs Trust" in your Will, you can avoid some of these problems.

Owning a house, car, furnishings, and normal personal effects does not affect eligibility for SSI or Medicaid. But other assets, including cash in the bank, will disqualify your loved one from benefits. For example, if you leave your loved one $10,000 in cash, that gift would disqualify your loved one from receiving SSI or Medicaid.

A way around losing eligibility for SSI or Medicaid is to create a Special Needs Trust. Then, instead of leaving property directly to your loved one, you leave it to the Special Needs Trust. You choose someone to serve as trustee, who will have complete discretion over the trust property and will be in charge of spending money on your loved one's behalf. Because your loved one will have no control over the money, SSI and Medicaid will ignore the trust property for program eligibility purposes. The trust ends when it is no longer needed--commonly, at the beneficiary's death or when the trust funds have all been spent.

The trustee cannot give money directly to your loved one--that could interfere with eligibility for SSI and Medicaid. But the trustee can spend trust assets to buy a wide variety of goods and services for your loved one. Special Needs Trust funds are commonly used to pay for personal care attendants, vacations, home furnishings, out-of-pocket medical and dental expenses, education, recreation, vehicles, and physical rehabilitation.

If you have questions about Special Needs Trust or other estate planning techniques to care for disabled or special needs family members, 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.

The Right Way and the Wrong Way to Distribute a Decedent's "Stuff"

No one really wants to inherit their parents' shoes or toothbrush or underwear after they die (at least I don’t), but what about all the other personal items left behind? From jewelry, art, furniture and antiques, to china, silverware, dishes and mementos, everything is an object over which a fight can ensue between siblings.

Exactly who is entitled to a decedent’s stuff (referred to as “tangible personal property” in legal jargon) and how is it passed out after death? Well, there is a right way and a wrong way, and it’s hard to enforce the right way.

A FEW RIGHT WAYS:

Washington and Idaho both allow you to leave a separate list of personal property with instructions as to who should get each item, as long as your Will references the list and references the law. Your list can be handwritten or typed, but must be signed and dated.
The list should be of sufficient detail to effectively describe each item being given.

Technically, all other property is supposed to be inventoried and then distributed according to the terms of the Will. If the Will provides for specific items to go to specific people, then that must occur. If not, then the beneficiaries can discuss who wants what and the Personal Representative must make a final decision in the event of a conflict. Any property left over is sold and the proceeds from sale split evenly among the beneficiaries.

Or better yet, the parent or grandparent can give an item of personal property before death. This is ideal because (1) it prevents any arguments relating to the parent’s intent, and (2) it allows the parent or grandparent to enjoy the act of giving (and witness the excitement of receiving) the gift. It also ensures that the gift will be made.

THE WRONG WAY.

Imagine the decedent’s heirs going through his or her house and randomly taking personal objects without any authorization or direction. They refuse to follow the terms of the Will and they fail to wait until a PR is in place to sort out the details. Once a PR is in place, it's too late, the property is gone and trying to recover it is nearly impossible.

The problem with the wrong way to pass personal items is that (1) it happens all the time, and (2) it’s hard to prevent. It really depends on the people involved. Will they wait to play by the rules or are they just going to do what they like? And the costs involved in trying to recover personal property is far too high to justify doing it in most cases.

At a minimum, a PR should try to secure the decedent’s home as soon as possible and take possession of the personal items as quickly as possible. Of course, it’s not always so easy to know which personal items people will want. Sometimes it can be the least obvious item.

If you have questions about distributing tangible personal property as part of your estate plan, give us a call at 253.858.5434 to see how we can help.

Requesting Medical Records in Personal Injury Cases

Medical records are the focus of many personal injury cases, since the claimant is seeking compensation for injuries ("damages") from the at-fault party. Where the injured person sought medical treatment for physical injuries, the doctor or hospital will have records of all treatment and medical bills. And at some point in the claim or lawsuit, the injured person or the "other side" (the at-fault party) will want to see those medical records.

In your request for medical records, you must include certain personal information including the patient's name, SSN, date of birth, etc. You should also specify whether you want specific records, records during a certain date range, or simply all records. Your attorney can request the records if you give written permission that is signed and dated. The requests can be faxed or sent via U.S. mail. Most medical providers charge a fee to copy and send the records. Depending on the medical provider, you may be required to pay the fee before the records are released.

Each state has specific standards for acquiring medical records for a legal purpose. When drafting a medical records subpoena, you must be aware of state laws and the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) requirements.

There are several advantages to having all medical records relating to a personal injury case:
* It allows both sides to assess the physical injuries and the viability of a particular case;
* It provides proof of physical injuries;
* It helps to calculate damages sustained by the injured person;
* It allows a medical expert to analyze the records to determine the cause of the injuries or, in a medical malpractice case, to determine whether doctors exercised reasonable care; and
* It helps the alleged at-fault person avoid paying for preexisting injuries.

If you or a friend or family member has a personal injury claim and has questions about obtaining medical records as part of the claim, give us a call at 253.858.5434 to see how we can help.