Thursday, January 30, 2014

How to Avoid Probate

As discussed in my previous post, probate can be a very difficult, complex, time consuming process.  The good news is, there are ways to avoid the probate process!  Here are a few ways to avoid the probate process.  Before doing any of the things listed below, I strongly suggest you consult with an attorney to fully plan your estate and ensure the best result for you personally.

Living Trusts: A living trust is a document that creates an entity that owns your property.  In it, you name the trustee (the person who controls the property in the trust) and the beneficiary (the person who gets to use the property for their benefit).  The trustee and beneficiary can change throughout time and upon certain acts, such as your death.  You can use a trust to hold your property for your benefit while you are alive, and for your relatives benefit after you are deceased.  Property held in trust in this way does not go through the probate process as it is owned by the trust and not a part of your "estate".

Deeds and Titles of Ownership:  You can also avoid probate with some property by titling it in a manner that allows it to automatically transfer to a certain person upon your death, rather than go through the probate process to have that ownership transfer.  This can be done with property such as automobiles, real estate, etc.

Joint Bank Accounts:  You can avoid putting your funds held in bank accounts through the probate process by putting the bank account in your name and another persons name as joint owners.

All of these methods have pros and cons and before you use any of these methods, you should at least have an estate planning consultation with an attorney to ensure you are using the best methods for your specific circumstances.  If you would like a consultation on estate planning, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Monday, January 27, 2014

A Note to Future Administrators/Executors of Estates

You may or may not know that you will be an administrator or executor for an estate.  Let's put that in simple terms: you may or may not know that you will be in charge of dealing with your parents'/siblings'/friends' property when they pass away.  If you know, READ THIS.

If you don't know, talk with your family and close friends.  Find out if they have a will or trust in place and if you are named in the will as the person in charge of dealing with their property (administering their estate).

While it is not a fun topic to think about or discuss, you should be meeting with an attorney NOW.  I know, from personal and professional experience, that the probate process can be complicated.  Probate, by the way, is the process by which you account to the state and heirs for the property that the person who passed away left.  This will outline some of the major issues you may run into with probate.  Please note that probate is a complex topic and cannot be fully explained in one article. However, if you think you may be involved in this process at some point in the future, it would be in your best interest to talk with an attorney extensively to prepare for that process now, rather than later.  The later you wait to understand what all is involved, the more complicated the process will be and the more room there will be for errors.

Probate requires a full and complete accounting of all property left by someone who has passed away.  The process begins by "qualifying" as an administrator or executor.  This means signing an oath that you will accurately report and distribute property and in most cases, posting a bond to ensure that oath.  Once you have qualified, you have a certain period of time to deliver an "inventory" to the Court (or appointed body known as the Commissioner of Accounts).  This is a full listing, including values, of them property left by the person who passed away.

After the inventory, you will have to file "accountings", showing the Court or Commissioner of Accounts (and likely all heirs) how the value of that property has changed (yes, this means if a savings account earned 12 cents, you have to let everyone know) and show any property that has been distributed (i.e., Mom's will said your sister gets the piano, you have to show that you have transferred the piano to your sister).  This typically has to be backed up with bank records, receipts, etc.

Once all property has been distributed, a "final accounting" will be filed, in which you show the Court or Commissioner that all of the property has been distributed and the value of the "estate" (that vague entity that, in an oversimplified definition, means property owned by the person who passed away).

Throughout this process, certain people can object to your accountings (most likely heirs) and if not properly done, the Commissioner of Accounts or Court can reject your accounting and make you try again.  There are also other things that should be done during probate such as a "debts and demands" hearing and a "show cause against distribution" but we will leave those topics for a future post.

As I've outlined briefly above, the probate process can be extremely difficult and complex.  The more you know about the process and the property you will be in charge of distributing beforehand, the more prepared you can be and more you can ease the process of probate.  If you would like more information on the probate process and a consultation on what to expect, or help navigating through the probate process, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Thursday, January 23, 2014

Can you recover money damages from a car accident - Contributory Negligence

Contributory negligence is a term you may or may not have heard before.  It is a major factor in determining if you can recover damages from a car accident.

In Virginia, if you were 1% at fault for the accident, and the defendant (or other driver) was 99% at fault, you CANNOT recover money damages.  There's no doubt this rule may be harsh to some, but it is the law and it's what the courts have to follow in Virginia.

That means, if the defendant (or other driver) was driving 20+ mph over the speed limit, and you were driving 5 mph over the speed limit and a crash results, you MAY not be able to recover your damages from the other driver.  The reason I say MAY is that the law is not that you cannot recover if you were doing something improper, the law is that you cannot recover if you were 1% at fault.  That means, your speeding would have to be found as a partial cause of the accident for contributory negligence to kick in.

While it appears straight forward, contributory negligence can have loopholes and if you have been in a car accident, it is best to seek legal advice as soon as possible.  Also keep in mind, there are many other factors that come into play in a care accident case, contributory negligence is just one of those factors.  If you would like to talk to an attorney at Baudean Law, PLLC, call us at (804) 447-0146 or email us at clbaudean@baudeanlaw.com.

Tuesday, January 7, 2014

Divorce - What to expect from an initial consultation

The Holiday season is over and for some is was a wonderful time of year.  For others, it may have been a touch time of year.  If you are one of those who had a tough holiday season and are thinking about speaking with an attorney about the divorce process, here is what to expect from an initial consultation:

1) How much does it cost?
Some attorneys offer free or discounted rates for initial consultations.  Some attorneys put that information on their website.  If it's not available online, a quick phone call to their office will typically answer that question.

2) How long will the meeting last?
Ask this question when scheduling your initial consultation.  Most attorneys tend to schedule their initial consultations for 30 min. or 1 hour. 

3) What do I need to bring?
While it would be great for you to bring a lot of documentation, it is hard at the beginning of the process to locate all of the documentation.  Some of the documentation that attorneys will need to begin representation are: financial documents showing your assets, how they are titled, etc., any written agreements you and your spouse may have entered into (pre-separation, post-separation, pre-nuptial, etc.), information related to your children (age, gender, etc.).  Most attorneys have a client information form they will ask you to fill out which will provide them with the majority of that information.  The documentation backing up that information will be needed at some point, but not necessarily at the initial consultation.
NOTE: If you do not retain the attorney you meet with or have not yet decided whether you will retain that attorney, you should ensure that you keep originals of your documents and let the attorney keep copies for their records. 

4) What questions should I ask?
You will want to gather as much information about the attorney at your initial consultation.  You should ask questions about fees and charges, who much money is required up front (retainers), what all is covered by those fees and retainers, how long the process is expected to last, how quickly the attorney responds to communications from clients, how they typically approach divorce cases (do they tend to encourage settlements or do they tend to fight it out in court?), etc.  It's best to ask questions at the beginning to ensure you and the attorney understand each other and agree on how to proceed.  Communication is extremely important in litigation, especially in divorce cases.

5) What should I expect after meeting with an attorney?
The answer to this depends on how the meeting went.  If you retained the attorney and paid the retainer fee, you should expect communication in the near future about what additional information and documents the attorney may need.  If this is the case, you should ensure that you and the attorney understand what the next step is and when that step will be taken.
If you did not retain the attorney, the attorney will likely follow up with you to determine if you have decided to proceed with your divorce.  It may be helpful if you let the attorney know a time frame within which to touch base with you.  If you know at the end of the consultation that you do not intend to proceed with that attorney, you can let that attorney know your intentions to avoid any follow up calls. 
NOTE: Remember, you always have the right to fire your attorney and seek alternate representation.. There may be consequences to doing so depending on the stage of your divorce.  You always have the right to seek independent advice. 

Initial consultations can be intimidating if you do not know what to expect.  These are just some of the basics that many attorneys follow but is not a guarantee.  You can always call the attorney's office and inquire as to that attorney's initial consultation practices before making an appointment. 

If you would like a consultation with our office, please call (804) 447-0146 or email us at clbaudean@baudeanlaw.com.