An Outline of the Probate Process

Probate is the court-supervised process of gathering a deceased person's assets and distributing them to creditors and heirs. Every State has its own rules about the documents it requires, what they must contain, and when they must be filed. Bearing in mind that no estate is perfectly typical, here is an outline of the probate process:

GETTING STARTED.
You begin the probate process by asking the Court to officially make you Personal Representative (PR) (formerly called an Executor or Administrator) If you end up acting as PR, you'll need to:
* File a request (called a Petition or Application) for probate You will also need to file the original Will (if there is one) with the Court.
* Publish a notice of the probate in a local newspaper according to court rules. Mail notices to creditors you know about.
* Mail the notice to beneficiaries and heirs, as required by the court.
* File proof that you properly published and mailed the notice.
* Post a bond (if required by the court), which protects the estate from any losses you cause (up to a certain dollar amount). The amount of the bond depends on the size of the estate.
* Prove the Will's validity by providing statements from one or more witnesses to the will. This is often done by submitting the "self-proving affidavit" that was signed by the witness in front of a notary at the time the will was signed.

ADMINISTERING THE ESTATE.
As PR, you're in charge of keeping estate property safe during the probate process. You will prepare a list of the Decedent's assets and, if necessary, get assets appraised. You'll need to:
* Get an employer identification number for the estate from the IRS.
* Notify the state health department of the death.
* Open an estate bank account.
* Arrange for preparation of income tax returns.
* Prepare an inventory and appraisal of estate assets.
* Mail a notice to creditors and pay debts.
* If required, file a federal estate tax return within 9 months after death. (Most estates are not large enough to owe federal estate tax).
* If required, file a state inheritance tax return, usually within 9 months after death. (Fewer than half the states impose their own tax.)

CLOSING THE ESTATE.
When the creditor's claim period has passed, you've paid debts and filed all necessary tax returns, and any disputes have been settled, you're ready to distribute all remaining property to the beneficiaries.

If you have questions about administering a Decedent's estate, 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.

The Importance of Regularly Updating Your Estate Plan

It's important to review and update your estate plan every few years. Sometimes the law changes - in recent years, there have been changes to the estate tax exemption, the law recognizes new kinds of trusts and deeds, and the adoption of the Trust & Estate Dispute Resolution Act (TEDRA) has greatly changed how Wills and Trusts can operate and how disputes are resolved. Sometimes the world in general changes - recognition of same-sex marriages changed how families are defined,... fertility science has changed how "descendants" and "heirs" are defined, and the internet and computer technology have changed how "assets" are defined.

If it's been a while since you've last reviewed or updated your Will, Trust, Power of Attorney, or other estate planning documents, 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.

Drafting Contracts for Small Businesses

Contracts. Contracts define most business relationships. If you're a small business owner, we can help you by negotiating and drafting legally-enforceable contracts--like service or performance or sales contracts, independent contractor agreements, and non-compete or nondisclosure agreements. We can also assist with contract disputes such as breach of contract matters.

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.

So you won in court and got a judgment against the other party. Now what?

When you win a case in court, the jury or judge may award you money damages. In some situations the losing party against whom there is a judgment (the "Judgment Debtor") either refuses to follow the court order or cannot afford to pay the full amount of the judgment. If this happens, you may have to take additional steps and incur further expenses to collect the judgment. Here are some things to keep in mind when collecting money after a judgment:

1. Individuals and businesses that are financially stable usually pay judgments that are entered against them. They do so because they want to avoid unpleasant collection activities and further costs.

2. If a Judgment Debtor refuses to pay a judgment or is insolvent (meaning their debts are greater than their assets), you may find it quite difficult to collect a judgment.

3. In most states, you can conduct post-judgment supplemental proceedings (interrogatories, requests for production of documents, depositions, etc.) to uncover a Judgment Debtor's sources of income and assets.

4. When you hold a judgment against an individual, you can garnish their wages to collect your judgment. Many states limit the amount you can garnish from a debtor's wages to 25% of the Judgment Debtor's paycheck.

5. Similarly, you may also garnish the bank account of a Judgment Debtor.

6. If you hold a judgment against a company, you may be able to get the sheriff to seize the money in the company's cash register. Judgment Debtors may also have vehicles, machinery, equipment, or other assets that are available to seize.

7. The time period for collecting judgments in many states is ten years, but after that expires you can usually renew the judgment for another ten years. So, even if the Judgment Debtor does not have any income or assets today, income or assets may be accessible in the future.

8. If the Judgment Debtor files a Chapter 7 bankruptcy, your ability to collect is cut-off, like most other creditors.

9. You should hire a lawyer to assist you with your collection efforts. You can typically hire a collection lawyer on an hourly basis or pay the attorney a percentage of the amount collected.

10. To collect a judgment against a Judgment Debtor or their property located in another state, you will need to record your judgment as a foreign judgment in that state. A court cannot enforce a foreign judgment unless the Judgment Debtor has “sufficient contact” with the state. Usually, you will want to file the foreign judgment in the county where the debtor lives or where the property is located.

For help understanding your rights and starting collection procedures for your judgment, give us a call at 253.858.5434 to see how we can help.

The Job of the Personal Representative of an Estate

If you're the executor of someone's estate, it will fall to you to distribute their assets and wrap up their affairs. Depending on the size of the estate, this can be a lengthy process that can take anywhere from 6 to 24 months and involves a lot of work. But think of it as an indication of the person's trust in you--they knew you would handle their estate the way they desired.

The process doesn't have to start immediately following a death. Give yourself time to grieve and be with family. You don't need to run from the funeral home to the lawyer's office. This is an extremely emotional time. Usually, people are overwhelmed when they walk into our office. Hopefully, they'll be less overwhelmed when they leave.

If possible, you'll want to see a lawyer within a month of the death. Ideally, this will be the same lawyer who drafted the Will. The sooner you get started, the sooner it's over. And we have found that some people like having tasks to do--it helps them cope with their loss.

The first thing to do is get a copy of the decedent's estate planning documents, including the Will and Trust Agreement, if one exists. Often, the lawyer will have one. At your initial meeting with the lawyer, we'll explain your role as Personal Representative of the estate and will guide you through this process.

Your first homework assignment will likely include getting copies of the decedent's death certificate and a statement of assets and liabilities. This should include a listing of all assets, bank accounts, life insurance policies, annuities, and investments, as well as a list of all outstanding debts. You'll want to start collecting the monthly statements on the bank accounts, so you can estimate their value on the date of death.

If the decedent's assets will be distributed outright to heirs, the matter is a relatively simple one. However, if the Will calls for the creation of trusts (to hold assets for future generations, or control the distribution to beneficiaries), those trusts will need to be funded, which means changing the titles on assets. Those trusts will then need to be administered and invested appropriately by the Trustee.

If the value of the decedent's estate amounts to more than $5.48 million, the estate will need to file a federal estate tax return. This should be drafted by a professional with experience in the area. The tax return and estimated taxes need to be filed within nine months of the death. Even if you file for an extension to file the return, the estimated tax still needs to be paid within the nine-month deadline. While you can obtain an extension to pay the taxes due, the IRS will begin charging interest on any unpaid amounts beginning at the nine-month deadline.

In the next few months, you and your lawyer will tally the decedent's debts and liabilities, determine which are legitimate, and pay those accordingly.

During this time, your lawyer will also weigh any challenges to the Will; for example, if an heir disputes how the assets have been allocated. We recommend that you settle any such disputes out of court rather than resorting to litigation, which is time-consuming and emotionally taxing and can eat up the disputed assets.

If you have been named as Executor or Personal Representative of the estate of someone who has recently died and have questions about administering and distributing the estate, give us a call at 253.858.5434 to see how we can help.

Estate Planning Presentations

We gave a presentation last week to the Spinnaker Ridge Community Club here in Gig Harbor about basic estate planning and probate. If your organization, club, church group, etc., would like a witty and charming speaker to come talk about Wills and Trusts, give us a call at 253.858.5434 and we can set something up.

Representing Small Businesses and Their Owners

If you're a small business owner, it's a good idea to have a lawyer advising your during the life of your business. We have over 20 years' experience helping small businesses and their owners with things like business formation, governance, buy-sell agreements, contracts, leases, and any related litigation. If you own a business or are thinking about starting one, give us a call at 253.858.5434 to find out 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.

What is Probate?

When someone dies, probate proceedings are often necessary, whether they left a Will or not. Probate is the court-supervised process where notice is given to the deceased person's heirs and beneficiaries, creditors are paid, and property is disbursed. Probate is usually necessary because that's the process whereby someone (the "Personal Representative," or "Executor" as it used to be called) has the legal authority to manage the deceased person's assets and debts and can convey title to any real estate or other assets.

If you've been named Personal Representative in someone's Will and have questions about how the probate process works, give us a call at 253.858.5434 to make an appointment.

Using Planned Charitable Giving as Part of Your Estate Plan

Americans are a generous people. We have a large number of clients who include charitable gifts as part of their estate plans. These planned gifts can be made while the donor is alive or in their Wills or Trusts after they die. Our clients give to schools, churches, research, the arts, and other causes they believe in. We have years of experience advising clients on charitable gifts and bequests, Charitable Remainder Trusts, Charitable Annuity Trusts, Educational Trusts, Donor Advised Funds, Restricted Fund Agreements, and other vehicles for creating a philanthropic legacy.

If you, your family, friends, neighbors, or co-workers would like to include charitable giving in an estate plan, 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.

Counsel for People Injured in Auto Collisions

We represent people who've been injured in auto and motorcycle collisions. We'll deal with the at-fault driver's insurance company for you, provide them with details of the collision, the extent of your injuries and treatment, wage loss, how your injuries have affected your life, and negotiate a fair settlement with them to compensate you for your losses, injuries, and pain and suffering. And if settlement negotiations fail or stall, we'll bring a lawsuit on your behalf so you can bring your claim in front of a jury.

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

Counsel for Small Businesses and Nonprofits

Over the past 20 years, we have served as counsel for nearly 100 small businesses, nonprofit organizations, churches, a mosque, a municipal utility district, and even a couple rock & roll bands, assisting them with their business formation; governance; contract and lease negotiation, drafting, and review; employment issues; real estate and commercial transactions; and any related litigation.

If you are a small business owner or nonprofit organization who needs legal advice, 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.

Nonintervention vs. Full Intervention Probates

When it comes to probate, there are two types of Court supervision. First, with nonintervention powers, a person may, by terms in their Will, relieve their Personal Representative (PR) of all duties imposed under the probate statute, or add duties not imposed by the statute, with the exception of the duty to act in good faith and honest judgment. When a PR is granted nonintervention powers, the PR’s administration of the estate is no longer directly supervised by the court unless a interested party petitions for a report on the affairs of the estate or for a citation in which the Court issues a show cause order to the PR to answer the well-documented allegations of the interested party. The Court may limit or revoke a PR’s non-intervention powers, under appropriate circumstances, or even replace the PR. Adequate reasons for removing a PR are waste of estate assets, embezzlement, mismanagement of estate assets, or any other reason satisfactory to the court. A removed PR must account to the Court for their management of financial assets during their tenure, and deliver all assets and paperwork of the estate to the successor PR. A PR with nonintervention powers may close the probate by filing a Declaration of Completion with minimal reporting to the heirs or beneficiaries.

We encourage PRs with nonintervention powers to keep creditors, heirs, and beneficiaries abreast of estate developments to the extent of their individual needs. Lack of information breeds distrust and injures family harmony.

Secondly, in full intervention probates, a PR seeks permission of the Court for each action they take. These requests are usually brought before the Court in batches, and most probates require two sets of requests. A full intervention PR accounts annually to the Court and heirs or beneficiaries about the affairs of the estate. The full intervention probate is closed by accounting to the heirs and legatees (the final report), which must include the PR’s receipts and canceled checks in the course of a final hearing, at which the Court approves the PR’s accounting and plan of distributing the estate assets (decree of distribution).

If you've been appointed PR of someone's estate and have questions about nonintervention vs. full intervention estates, give us a call at 253.858.5434 to see how we can help.

Preparing a Power of Attorney is an Act of Love

Drafting a Durable Power of Attorney is an act of love - By detailing how you want your healthcare and finances handled in the event of an emergency, you are sparing your family and friends the unpleasant task of making such decisions in a stressful time.

A general Power of Attorney is a document that grants your chosen representative legal authority to act on your behalf for your financial affairs. This person is often referred to as your agent or your attorney-in-fact. The person is required to act in your best interests. The general Power of Attorney is typically extinguished upon death, revocation, or divorce.

A healthcare Power of Attorney designates the person who will make medical decisions for you in an emergency. Even though you may have set out your wishes in your "Living Will," such documents cannot cover every circumstance. The person who has a Power of Attorney for healthcare is the person who will make decisions not covered by your healthcare directive. In order to create a healthcare Power of Attorney, most states only require that you be at least 18 years old and competent when you create the document. This document takes effect when your doctor declares that you lack the "capacity" to make your own health care decisions. The healthcare Power of Attorney is generally only extinguished upon your death, revocation by you or a court, or upon divorce if the power of attorney was granted to the ex-spouse.

The process of creating a legal document can be a daunting task. If you need legal advice about creating a Durable Power of Attorney, 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.

Things to Consider in Settling a Personal Injury Case

The majority of legal claims arising from auto collisions do not reach a jury trial. Typically, they are resolved earlier in the litigation process through a negotiated settlement among the parties. Sometimes an informal settlement can take place before any lawsuit is even filed. Through settlement, the plaintiff agrees to give up the right to pursue any further legal action in connection with the collision in exchange for payment of an agreed-upon sum of money from the defendant or an insurance company. If you are thinking about settling a legal claim after an auto collision, or if you have received a settlement offer from the opposing side, you may want to talk to a lawyer. It’s important to get his or her thorough assessment of the case and opinion about the likelihood of settlement. When meeting with your lawyer, you should consider and discuss the following points:

STRENGTHS OF THE CASE.

* Jury verdicts and settlement outcomes in similar cases;
* Your chances of winning at trial;
* Practical difficulties in trying the case;
* Strengths and weaknesses in your evidence; and
* Strength and weaknesses in your opponent's evidence.

MONEY AND DAMAGES.

* What your lawyer thinks the case may be worth in a range of dollar amounts and what he or she thinks you could receive in damages at trial;
* The minimum amount you will accept to end the case and avoid trial;
* The policy limits of the defendant's insurance coverage; and
* The defendant's own monetary resources.

As a party to the lawsuit, only you can make the final decision of whether to accept a settlement. But keep in mind that opposing counsel is obligated to get the best possible deal for their client, which means offering you as little as possible. Is it a good deal for you, too? That can be a complicated question best analyzed by an experienced lawyer. If you need legal advice about a settlement offer, contact us at 253.858.5434 for a free consultation today.

A Well-Drafted Contract is Key to the Successful Operation of Your Small Business

With the internet, it's easy to find hundreds of samples of legal forms like contracts online for free. Some small business owners wonder why they should spend the money hiring a lawyer to draft a partnership agreement, for example, when they can just as easily fill in the blanks on a form. If you end up in litigation later, you may regret that decision.

A well-drafted contract is key to the successful operation of your business and your business relationships. We can help you craft a contract specific to your situation that takes into account how the courts interpret contracts, how laws regulate contracts, and what standard business practices are in the community. We have the experience to predict potential problem areas and draft your contract to avoid such problems.

One of the most common problems with contracts is the use of vague, ambiguous, or unclear language. Sometimes contracts are so laden with “legalese” that it is virtually impossible to tell what the parties actually intended. This is not an effective contract. Perhaps more importantly, it is one that will be difficult for a court to enforce. Courts will construe unclear language against the party who drafted the contract. Needless to say, that can have expensive consequences for unwary small business owners.

Another problem is the absence of important provisions. How do you terminate the contract? How do you assess damages for breach of contract? Can the contract be assigned? These are just a few considerations that may not appear in a sample form contract. We can discuss options with you to make sure you cover all foreseeable situations.

If you're a small business owner who needs help preparing the contracts that are essential to the operation of your business, 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.