Monday, October 20, 2014

What To Do With Your Will

Having a will is a great thing, as I'm sure you've noticed from my previous posts.  However, getting that will drafted and signed is only half the battle.  Here's a few tips for what to do now that you have your will in hand.

1.  Find a safe place to keep it.
Take some time to think about your lifestyle and your family members' lifestyles and determine the best place to store your original will.  One place a lot of people think of but should probably NOT use is a safe deposit box.  If your family members are unable to access your safe deposit box without you, they will not be able to obtain the will if you pass away (same goes for your advanced medical directive and power of attorney).  You probably want to keep it somewhere safe, such as a an actual safe and want to keep in mind that it should be durable.  One potentially good option is to store it in a fireproof safe. 

2.  Make sure your family members know how to find it. 
Once you've determined where to store your will, you want to make sure your family members and/or anyone named in the will know how to access it.  If it is in a fire proof safe, does someone have the code to unlock the safe?  Do they know exactly where you store your fire proof safe?  Your will might not do you any good if no one can find it when it's time to use it. 

3. Give copies to all your family members.
It is often a good idea to give each family member or person who is named in the will a copy of your will.  This may come in handy should your will become lost or accidentally destroyed in the future.  In addition, it will make your wishes and desires less of a shock when the time comes to execute those wishes and desires. 

4.  Talk to your family members about your wishes.
It is usually a good idea to have a conversation with your loved ones about the wishes that you put in your will.  It may give you the opportunity to clear up any vague wishes and make sure your family is on the same page.  While the will gives your wishes and desires enforceability, it creates a calmer, more peaceful time for your family if they already know and understand exactly how you want things to happen. 

A will is a great tool to have for yourself and your family members.  However, taking the above listed actions ensures that your wishes are more understood and heightens the possibility that everything will happen smoothly and exactly as you wish. 

If you would like a consultation on a will or other estate planning documents, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Tuesday, October 14, 2014

5 Things To Do After A Loved One Passes Away

In the weeks and months following the death of a loved one, you may be overwhelmed with what to do next.  It is difficult to deal with your emotions and the legal processes that need to be completed. Here's a list of a few things you may need to be taking care of after a loved one passes away. 

1.  Obtain the death certificate. 
You will need to obtain the death certificate for your loved one and most likely, you will need more than one.  The following people may require a death certificate: the court (where your loved one's property will be distributed through probate), the banks (for any joint bank accounts and/or safe deposit boxes), stock companies with whom your loved one held stock, etc.  While you can order additional death certificates in the future, it's a good idea to try to figure out about how many you will need and order them all at once. 

2.  Schedule an appointment with a probate and/or estate planning attorney. 
You will want to sit down with your attorney to go over the details of how your loved one's property is going to be distributed.  You should do this regardless of whether you will be the person administering the estate because you want to ensure your property rights will be protected as well.  An attorney will give you a basic idea of what the legal process will look like for you as the property is distributed over the coming months or years.

3.  Schedule an appointment with the probate court.
The first step to distributing property is to schedule an appointment with the probate court.  You will need to bring the original will, the death certificate and a check (for an amount the court will specify).  When you schedule your appointment, make sure you ask what all the court requires you to bring to the meeting so that you do not have to schedule a second meeting.

4.  Get organized. 
Going through probate, if you are administering the estate (i.e., making the distributions), you will need to have very detailed records of all property owned by your loved one, any property earned after your loved one's passing and any property distributed after your loved one's passing.  The sooner you get all of the property organized and have a method to maintain your records, the better off you will be in the long run.  This is something you may want to talk with your attorney about while you are doing #2 above. 

5.  Revisit your will, advanced medical directive and power of attorney.
When a close loved one passes away, it may affect your current estate plan.  If that person was designated as your power of attorney, you may want to have a new power of attorney drawn up so that it remains valid and in effect.  It may also effect your will and how your property is distributed, or more importantly, who will be taking care of your children should something happen to you.  

There is obviously much more that will likely need to be done; however, by doing these 5 things you should be headed in the right direction to obtain some closure and honor your loved one's wishes.  

If you have recently had a love one pass away and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Tuesday, October 7, 2014

3 Things You Should Consider Including in Your Property Settlement Agreement

Hopefully during your divorce proceedings you and your soon to be ex-spouse will be able to come to an agreement on all aspects of the divorce: property distribution, child custody, support, etc.  If you are, then you (or hopefully, your attorney) will be drafting your property settlement agreement (also called a separation agreement).  Here are three things you should consider including in your agreement. 

1. Neither parent is to have overnight guests of the opposite sex while the child is in their care.
While this may sound unreasonable, it protects your children in a lot of ways.  The court may order this but if you are in the process of settling your divorce case this is something you and your soon to be ex-spouse should consider adding to your agreement. 

2. Neither parent is to consume alcohol or illegal drugs while the child is in their care. 
This may sound obvious but it is important to put in your agreement if you think there may be an issue with this.  You can add a similar provision that has whatever language you want - if you agree that it is okay to have a beer or glass of wine while the child is in your care, maybe you limit the language to illegal drugs.  Either way, this is a good idea to consider putting in your agreement.

3. Neither parent is to disparage the other in front of the children.
We all know everyone needs to vent every now and then and there is no problem with that.  There may be a problem, however, if it is done in front of the children.  Saying negative comments about the other parent when the children can hear can cause long term consequences and is generally not a good idea.  

These are important for a couple of reasons.  First, it opens the lines of communication to ensure you and your soon to be ex-spouse are actually on the same page and agree with how things will work from here on out.  Second, if one of those issues becomes a problem in the future, you now have a way to enforce those concepts through your agreement, rather than being forced to go to the court to modify the terms of the custody or visitation of your child, if applicable.  Even if you think these concepts are a given and you and your soon to be ex-spouse are definitely on the same page, if it is not in your agreement, it may not be enforceable in the future. 

If you are thinking about a divorce or going through a divorce and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Monday, September 29, 2014

5 Ways An Attorney Can Help You During Divorce

Many people hire attorneys to help them navigate the divorce process but do you really know what all an attorney can do for you?  These are 5 things that attorneys do as a regular part of their job that you may or may not know about.  

1.Draft the legal documents.
In a divorce, there are many documents that need to be drafted which may be invalid if not properly drafted.  These include but are not limited to: Complaint for Divorce, Property Settlement Agreement, Depositions/Affidavits, Final Decree of Divorce.  An attorney will know and research exactly how to draft these documents to protect you in the future.

2. Provide legal advice.
Aside from the documents that must be filed, an attorney gives you legal advice.  This means the attorney will tell you whether or not a property settlement agreement is a good idea and if it's an offer you should consider accepting.  An attorney can provide advice on how to work out an appropriate visitation schedule for your children or how to handle a sudden change in that schedule (i.e., your ex-spouse did not bring the children home when he/she should have).

3. Negotiate. 
An attorney knows the tactics and strategies for negotiating a settlement agreement with your spouse.  Not being personally involved in the case, the attorney is not clouded by the extensive emotions that come into a divorce and can effectively negotiate on your behalf.

4. Direct you to other professionals.
An attorney should be able to provide you with the resources you need to make it through your divorce.  He/she should be able to give you references for a therapist or financial advisor should you need or want one. 

5. Explain the outcome.
If you do end up in court with a judge determining the outcome of your divorce, your attorney can explain to you what the judge has ruled, what your obligations are and what you should expect moving forward and, if applicable, how to change that ruling in the future (i.e, appeal, motion to reconsider, etc.).  

An attorney can do many things for you during your divorce process and these are only a few of the ways an attorney can help you.  If you are unsure of where to turn for help during your divorce, it doesn't hurt to call your attorney and see if they can help you.  If you are going through a divorce and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com. 

Wednesday, September 24, 2014

Kardashian v. Jenner - What are "Irreconcilable Differences"?

It's been all over the news this week.  Kris Jenner (formerly and also known as Kris Kardashian) files for divorce from Bruce Jenner, citing "irreconcilable differences".  I love when the media uses quotations of legal terms.  Sometimes it can make a case sound much more interesting.  Sometimes people want to read because they want to figure out what that term means.  So what are "irreconcilable differences"? 

Before we get to that term, let's get down to the basic concept of divorce.  There are two basic ways to get a divorce: on a fault ground or on a no-fault ground. 

Fault Grounds 
If you are obtaining a divorce on fault grounds it means one party did something legally wrong during the marriage and as a result of that act, the marriage fell apart.  These can include adultery, desertion, cruelty, etc.  This means on person is to blame for the marriage ending and can have consequences for that person (i.e., that person to blame may not be allowed to be awarded alimony).

No Fault Grounds
If you are obtaining a divorce on no-fault grounds, it means the marriage simply fell apart and neither party is to blame for that.  This can mean the parties grew apart, had different ideas of what marriage should be like, fell out of love, etc.  So what do we call all of those things?  We call them "irreconcilable differences".  Basically, the parties disagree on something important to the marriage and they are never going to be able to agree. 

So, essentially, "irreconcilable differences", while it may sound interesting and intriguing in the news, simply means the parties no longer want to be married and are moving on with their lives. 

If you are thinking about a divorce or going through a divorce and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Monday, September 22, 2014

3 Mistakes You Are Making with Your Will

Hopefully you have read my post on The Benefits of a Will, have met with an attorney and drafted a will.  If not, go back and read that post before you continue on.  If so, here are a few mistakes you may be making with regards to your Will.  

1. Keeping it in a safe deposit box.
I'm sure your attorney told you to make sure you keep your Will in a safe place.  As you may or may not know, in order to administer your estate (distribute your property) after your death, the executor needs to take your Will to the courthouse.  In most circumstances, though there are a few exceptions, the Court will only recognize the original signed will - not a copy.  So, what's safer than a safe deposit box?  Well, maybe nothing.  The problem comes into play with accessing your safe deposit box after your death.  If you are going to keep your will in a safe deposit box, ensure that the executor (and back-up executor, see below) have access to your safe deposit box without you being present.  Otherwise, your executor is going to run into major problems accessing your will, which is one of the first steps to distributing your property. 


2. Only designating one executor and/or beneficiary.
Let's say there is only one person in your life that you want to handle your estate and/or want to inherit all of your property so you only listed one person as the executor and one person as the beneficiary and were content with your will.  Here's the problem: if that person is no longer willing or able to serve as the executor, or they have passed away prior to you, who knows where your property is going to go?  If you only list one executor and that person is unable or unwilling to serve, the court will have to appoint someone to do the job.  To fix this, appoint an executor and then appoint someone as a back up executor, should the first person be unable or unwilling to serve.  Same thing goes for your beneficiaries: make sure you have back ups.  So give all of your property to the one person who you want to receive it, and if they have predeceased you, give it to a back up person.  This could be a person, a charity, a church, etc.  If you do not list enough people/organizations as beneficiaries and the court cannot find any heirs at law, the government may end up receiving all of your property. 

3. Not reviewing/updating your Will
It is absolutely wonderful that you have a will in place.  However, it is important to review it on a regular basis (I would suggest at least annually).  This will ensure that your plan remains exactly as you want it.  Maybe you've had a falling out with a beneficiary, or maybe you've had new additions to the family.  Make sure your will is up to date on a regular basis.  In addition, you may want to contact your attorney each year to ensure the laws have not changed surrounding your will and that it will still play out exactly as you want it too.

Whether you have drafted your will yet or not, these are some concerns that you should keep in mind.  As always, you should discuss the specifics of your circumstances with an attorney to determine the best plan for you.  If you would like a consultation on a will or any related document, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Wednesday, September 10, 2014

What You Should Know About Protective Orders

In my last post discussing the Ray Rice situation, I mentioned that protective orders are something that are typically involved in similar situations.  This post is to give you more information on protective orders, what they are, who needs them and where you can get them.  If you think a friend or family member may be in need of a protective order, please share this information and/or contact your local services group for help (see below for more information on that). 

Protective orders are a court orders that are put in place to restrict contact between two or more people.  To be granted a protective order, you must prove to the court that there is threat of imminent (very near future) harm by someone.  There are three major steps to obtaining protective orders.

First, you can go to your local magistrate's office and request an emergency protective order.  These typically last for three days and expire at 11:59 p.m. on the night of the third day following issuance.  These are issued "ex-parte" meaning the person whom you believe is a threat to your safety does not have notice of the proceeding and is not present when you request the protective order. 

The next step is to obtain a preliminary protective order.  This means, within the three days that the emergency protective order is in effect, you appear before a judge (in general district court if it is not a family member or in juvenile and domestic relations district court if it is a family member or someone you live with).  You, again, have to prove that there is the threat of imminent harm.  If the judge issues this protective order, it will be in effect for approximately 15 days.  Within those 15 days, the court will hold another hearing for another protective order.  In the meantime, the person whom the protective order is sought against (the person you believe is going to harm you) will be formally served and notified of the protective orders and proceedings and will be given the opportunity to appear at the next hearing and be heard on the issues. 

At the next hearing, which is likely the last hearing that will be held, the court will hear evidence from you and the other person as to whether or not there is a threat of imminent harm to you.  If the court finds you are in imminent danger, the court can issue a protective order that will be in effect for two years.  If, after those two years, you believe you are still in danger, you can seek to have it extended or go through the process again to obtain a new two year protective order.

Typically, you can include any family member or person who resides with you as people protected by the protective order.  For example, if you have a child who lives with you, you can include that child in the protective order so that the other person who is the threat of imminent harm cannot have contact with that child as well. 

Protective orders, if granted, will prohibit the threatening person from contacting you in any way.  This means he/she cannot attempt to contact you through email, mail, a third party, etc.  It may also include a provision that the person is to stay a certain distance away from your work and/or home addresses. 

While the process may appear somewhat straight forward, it is a complicated process to have a court actually grant the protective order in your favor.  If you are not granted the protective order, there are limitations on when you can try again.  Given the seriousness of the situations that protective orders typically arise from, you should seriously consider seeking legal advice and/or representation by a capable lawyer. 


**NOTE: If you need additional services and are the victim of domestic or sexual abuse, there are many area organizations that may be able to assist you.  The contact information for those organizations are listed below.
Greater Richmond Regional Hotline: (804) 612-6126
Hanover Safe Place: www.hanoversafeplace.com
Richmond YWCA: www.ywcarichmond.org
Safe Harbor: www.safeharborshelter.com