The College Send Off Done Right

College-PlanningNow is the time many families look forward to the storied day when they send their children off to college.  It is a time to celebrate, as the child and the family have all worked hard toward this goal.  Often, in this hopeful and hectic time, lost among the campus tours, class schedules, text books, and clothes shopping, is the idea that there are legal issues that merit consideration, particularly if your child is 18 or older.  Parents of adult children do not have the same rights to grades and other academic information, or to make medical or financial decisions.  Proper legal planning for these issues can be hard to address but the peace of mind it brings may well be worth it.

  • Will – Thinking about the possible death of your adult child is undoubtedly difficult but is a matter that needs discussing, particularly if he or she owns significant assets outright.  If your adult child were to die without a will, laws of intestacy would determine the distribution of his or her estate.  If your adult child has no children of his or her own, in most states the estate would then pass upward to the parents, which may wreak havoc on their estate plan.
  • Power of Attorney – Statistically, young men are approximately 32%, and young women 147%, more likely to become disabled than die.  Still, if planning for the possible death of a young person is uncommon, planning for possible disability of one is almost unheard of.  If your adult child is the victim of an unfortunate incident resulting in disability, or less tragic, studying abroad, and unable to manage his or her financial affairs, a durable power of attorney can save the time and expense of having a guardian and/or conservator appointed by a court, and allow the nominated parent (or other person) to take care of things like banking, paying bills, and filing taxes.
  • Advanced Directive – As a power of attorney allows the student to designate someone to handle financial affairs, an advanced directive, sometimes called a living will, allows the designation of a person to handle medical decisions and to carry out your child’s wishes regarding life support, ‘heroic measures,’ and the like.

Other Issues:

  • InsuranceHealth – Many college students are included in their parents’ health care coverage and recent reforms allow this until the student graduates from college or turns 26.  If your child is not covered on your policy, check with the college or university, as many offer low-cost plans themselves or have arrangements with insurers that could benefit your child.  Car – If your child isn’t taking a car to college, think twice before automatically removing him or her from your auto policy.  When your child returns home for visits, will he or she be driving your car?  What if, while away at school, your child is asked to be the designated driver for a group of friends?  Talk to your auto policy representative about your options.  Property – What if your child’s laptop is stolen from the dorm?  Talk to your homeowner’s insurance representative about protecting your child’s personal belongings.
  • FERPA (The Family Education Rights and Privacy Act) – Gone are the days when parents had unfettered access to their children’s academic records.  FERPA explicitly prevents a student’s information from being released without his or her permission.  There are exceptions but parents should check with the college or university regarding its FERPA policies and consider asking their children to sign a FERPA release authorizing parents to view the student’s academic records.

For informational purposes only and not to be relied upon as legal advice.

by Brook D. Wood

Some Helpful Links:

University of Oregon Academic Calendar

Oregon State University Academic Calendar

Portland State University Academic Calendar

Portland Community College Academic Calendar

Lewis & Clark College Academic Calendar

Common Neighborly Disputes

Why Can’t We All Just Get Along?

Robert Frost said, “good fences make good neighbors.”  What he didn’t tell us is that that fence, itself, could be the source of some serious animosity.  In a way, neighbors are like family – rarely do you get to choose them and you will not always get along.

Here are a few common sources of neighborly squabbles, with ideas on resolving similar issues you might be having peacefully and legally.  Remember, however, if resolution is not possible and the fight is taken to the courts, only a competent, licensed attorney is trained to analyze the facts of your specific situation, including any legal claims you or your neighbor(s) might make, and present you with your legal options.

If your property in question is in Oregon or Washington and you would like one of our attorneys to contact you to discuss your dispute, please complete the form here.

Boundary Disputes – The most obvious potential issue between neighbors is disagreement over where your property ends and your neighbor’s begins.  This type of dispute usually arises when one owner decides to build a fence or put up a row of trees along where he believes the property line to be.  If not properly addressed beforehand this type of dispute can result in significant financial losses for the party in the wrong – perhaps tearing down that fence or pulling up those trees only to move them two or three feet.  The easiest way to avoid problems is to request a property survey BEFORE you build that fence.  You may even convince your neighbor to share in the expense of the survey, but shouldn’t expect it.

The Multnomah County Surveyor’s Office provides a FAQ regarding private property surveys here.

Trespassing Trees – Though common enough to be considered an issue of its own, these disputes are really just another type of boundary dispute.  Your neighbor has trees along the property line.  Though the trees are technically on his property, the branches overhang onto yours.  What can you do?  The best course of action is usually to ask your neighbor to trim the trees back and to give him or her permission to come onto your property, if necessary, for that purpose.  Unfortunately, this doesn’t always work.  Some neighbors are too busy, others just too mean.  If after a reasonable period of time your neighbor hasn’t addressed the issue, you might try approaching him again, this time suggesting hiring a tree service, and perhaps offering to chip in.  If this still doesn’t accomplish the desired result, you are generally free to reasonably trim the offending branches or to hire a tree service yourself and ask that your neighbor compensate you for the cost, though are likely unable to force that point.  You are not entitled to kill or cause serious damage to the tree(s) in question, so if you are in doubt the tree service is likely the better idea.

Noise and Other Annoyances – Whether it be a favorite song played over and over and over, an enthusiastic guard dog, or an exceeding affinity for Christmas lights, there are times when most neighbors (even you) get on someone’s nerves.  Again, the best way to deal with these issues is simply to talk it out peaceably, in advance whenever possible.  If that doesn’t get the job done, consider raising the issue with your home-owners or condo association (if you have one), apartment or building management (if applicable), or your neighbor’s landlord (if you know how to contact him or her), before calling the police to make a nuisance complaint.

For informational purposes only and not to be relied upon as legal advice.

by Brook D. Wood

Bankruptcy FAQ

Bankruptcy – Frequently Asked Questions

Below are a number of Frequently Asked Questions that we get from many of our clients.  The responses are general and may be different depending on your own unique circumstances, especially if you live elsewhere than Oregon.  Our consultations are free and we would be glad to discuss your particular financial situation and provide you with specific answers to your questions.

Will I lose my home?

It depends on the current value of your home and the amount you owe against it.  In Oregon, if the value of your home after subtracting the mortgage balance is $40,000 or less (or $50,000 for married filers) then you should be able to keep your home as long as the payments are current and remain current.  If the total is considerably more than $40,000 or $50,000, then filing a Chapter 13 may be your best solution for keeping your home.

Will I lose my car?

As with your house, your ability to keep your car depends on the value of the car and the amount owed against it.  In Oregon, if the value of your car after subtracting the loan balance is $3,000 or less (or $6,000 for married filers) you will be able to keep your car.  If this amount is greater than $3,000 then there may be alternatives that will allow you to keep your car either in a Chapter 7 or in a Chapter 13.

Will bankruptcy stop the foreclosure of my home?

Yes, when you file bankruptcy an “automatic stay” goes into effect that prevents creditors from taking any action to collect on a debt incurred prior to filing for bankruptcy.  This automatic stay will stop a foreclosure sale, but it only stops it temporarily.  If you are facing foreclosure make sure you contact a bankruptcy attorney well before your house is scheduled to be sold at auction.

Can I sell my stuff before I file?

Yes, you can sell your stuff.  But you have to sell it for a fair price.  In other words you can’t sell your car to your friend for $10 – unless your car is really worth $10.  If you do sell something worth more than $500, be sure to keep records of who purchased it and how you spent the money you received.  Receipts and bills of sale are very important.

Can I give away my stuff before I file?

No.  If you give away anything worth more than $200 it could be considered a fraudulent conveyance and the trustee may be able to recover the property.

Will I have to go to court?

If you are represented by an attorney, in most cases the only legal proceeding you are required to attend is the Section 341(a) meeting of creditors that takes place at the US Trustee’s office or the Chapter 13 Trustee’s office.  In a Chapter 7 case if you are reaffirming a debt on a car loan, you may be required to attend a short court hearing where a bankruptcy judge will determine whether reaffirming the loan on your vehicle is in your financial best interest.  There are cases that end up in court for various reasons, but in most cases with proper planning, court appearances can be kept to a minimum or avoided altogether.

For more on Reaffirmation Agreements, click here.

Will everyone know that I have filed bankruptcy?

Your bankruptcy petition is a public document and, as such, anyone that searches for your petition could find it.  On the other hand, hundreds of bankruptcy cases are filed each day, so unless someone is specifically looking for your bankruptcy case, there is not much chance they will know about it.  All of your creditors will receive notice of your bankruptcy filing.

Will I be able to re-establish credit after I file?

Yes, many of our clients report receiving offers for credit cards within weeks of filing bankruptcy.  Most often the offers are for higher interest rate cards with low credit limits.  However, once you have filed bankruptcy you can begin to rebuild your credit by using credit wisely and not carrying a balance on your credit cards.  You may be able to obtain a “secured” credit card which will allow you to rebuild your credit.

Will I have to give up all of my assets?

When you file bankruptcy, everything you own becomes part of the “bankruptcy estate.”  However, you are allowed to keep assets that fall within certain guidelines.  For instance the Oregon exemption for Household Goods and Furniture is $3,000.  Now ,$3,000 may not sound like a lot of money for all your household goods and furniture.  However, in bankruptcy we use the current value for your property, not what you paid for a particular item or what it would cost if you bought it new.  One Chapter 7 trustee explained this idea as follows “what would you get if you put all of your stuff (household goods and furniture) out in your driveway, on a cloudy day?”  The answer in most cases is not very much and quite often well below the $3,000 exemption.

To be contacted by an attorney at Owens / Pinzelik, P.C., click here.

For informational purposes only and not to be relied upon as legal advice.

by John A. Pinzelik

Bankruptcy – Reaffirmation Agreements

What are Reaffirmation Agreements?

When you purchase a home or car, in most cases the lender takes what is known as a “security interest” in the home or car when loaning you the money to make the purchase.  The purchased item then serves as collateral for the loan.  When a lender takes a security interest, it can take back the collateral if you fail to make the required payments.

If you are current on the payments on such a loan and can afford to continue to make payments you can enter into an agreement with the creditor to continue to pay that debt even though you have filed for bankruptcy.  That agreement is called a Reaffirmation Agreement.  This agreement “renews”  or “reaffirms” your promise to pay the debt, and in exchange you get to keep the property. Reaffirmation Agreements only apply when there is property that secures the loan like a house, car, computer or even tires, for example.  You cannot reaffirm a debt to a medical provider or family friend because there is no property involved with that debt.

In some cases, the court requires you to attend a hearing to determine whether signing the Reaffirmation Agreement is in your best financial interest.  At the hearing the judge will ask you a few questions about the loan and your income and then determine whether he or she feels it is in your best financial interest to reaffirm the loan.  If the judge decides it is in your financial best interest, he or she will sign the agreement and you will be obligated to pay the loan in full even if later on you cannot afford to make payments and the creditor repossesses the vehicle or other property.

If the judge decides it is not in your financial best interest to reaffirm the loan, in most cases you can still keep the vehicle or other property as long as you are current on the payments and continue to make timely payments.  However, if you become unable to pay the loan at a later date, the lender can repossess the vehicle or other property but cannot seek further payment from you nor sue you to collect the balance of the loan.

To be contacted by an attorney at Owens / Pinzelik, P.C., click here.

For informational purposes only and not to be relied upon as legal advice.

by John A. Pinzelik

The Sondra Shineovich Story

 In 2006, Ms. Sondra Shineovich came to our offices needing legal assistance. After a long, hard battle, and with the appellate work of Mr. Mark Johnson Roberts (now ‘of counsel’ with Gevurtz Menashe), the Oregon Court of Appeals declared unconstitutional the Oregon laws granting presumptive parental rights to heterosexual husbands of women who bear children of artificial insemination, and expanded those laws to provide the same presumptive rights and responsibilities to the non-AI-birth partner in same-sex female relationships. Her case was remanded back to the Multnomah County Circuit Court, and, with the representation of Owens / Pinzelik, P.C., in December, 2010, Sondra was declared the legal parent to the son and daughter taken away from her by her former partner.

We were and continue to be ecstatic at the result obtained for her.

Click the thumbnail above or this hyperlink to watch Sondra tell her story.

Thanks, Sondra.

The American Rule & Oregon Small Contract Claims

The ‘American Rule’ and Small Businesses

The ‘American Rule’ is shorthand for the notion that, in America, generally, unless otherwise explicitly authorized by contract or statute, attorney fees ARE NOT awarded to the prevailing party in a lawsuit.  Presumably, in America, we believe every person and corporate entity should be responsible for his, her, or its own attorney fees.

As a small business-owner (with the responsibility for day-to-day operations expenses, overhead, payroll, etc.) the American Rule can make the decision to hire an attorney to collect on an unpaid account very difficult, particularly when the amount unpaid is only a few thousand dollars, perhaps – a significant hole in your bottom line but hardly seeming worth all the trouble, right?

Lawyers and their services aren’t cheap.  Recent studies suggest the average rate for attorney services in the United States is nearly $300 per hour.  In a state such as Oregon it is probably less than that, but still NOT CHEAP.  How is a small business-owner supposed to enforce his rights against un-paying clients? How much sense does it make to spend $5,000 (or more) to chase down a debt of roughly the same amount?

Attorney Fee Clause

I feel comfortable in going out on a limb to say that most written contracts contain a clause specifying that the losing party is to be made to compensate the winning party for it’s attorney fees in any lawsuit stemming from the contract.  Generally, how this works is:

  • You’ve got a signed contract containing such an attorney fee clause, and under which you provide some product or service to a client, who then does not pay.
  • You file a lawsuit against them paying your own attorney fees (remember, American Rule) as you go.
  • Assuming you win, a judgment is entered against the client ordering him, her, or it to pay the account PLUS the attorney fees you incurred in bringing suit.

No Written Contract or a Written Contract with no Attorney Fee Clause?

Unfortunately, note above that I said “most,” not all, contracts contain such a clause.  In fact, many small business-owners cannot afford an attorney and will either do business on a handshake, without a written contract, or will draft contracts themselves, often unaware they are forgetting to include clauses or terms that can be very helpful to them later, such as an attorney fee clause.

Under the American Rule, this can potentially make collecting against an un-paying client a very unprofitable exercise.

ORS 20.082 & Oregon Small Contract Claims

As stated above, the American Rule applies generally and we have to look for exceptions to that rule in contract or in statute.  There actually are a number of these (what attorneys often refer to as ‘fee-shifting’) statutes on the books in many states, including Oregon, such as in many types of Landlord-Tenant, Domestic Relations, and Securities Law actions.

Fortunately, there is also a fee-shifting statute that might help small business-owners against un-paying clients.

ORS 20.082 provides that in a suit concerning an express or implied contract, or other document evidencing a debt, that DOES NOT contain an attorney fee clause, and in which the debt for which payment is sought is $10,000.00 or less, the prevailing party may be compensated by the other side for its attorney fees.

So, if, as a small business-owner, you find yourself questioning whether or not you should spend your time, energy, and money chasing down ‘small’ ($10,000.00 or less) debts, be sure to figure ORS 20.082 into your consideration.

Taking advantage of this statute has requirements, however, and specifically does not apply in certain situations.  To decide if ORS 20.082 can help you and your small business recover monies owed by un-paying clients, please, consult with a licensed, competent, Oregon attorney.

To be contacted by an attorney at Owens / Pinzelik, P.C., click here.

For informational purposes only and not to be relied upon as legal advice.

by Brook D. Wood

Bankruptcy – What is Chapter 13?

Chapter 13 Bankruptcy – also known as reorganization or “wage earners” bankruptcy – requires you to pay your “disposable monthly income” into a Chapter 13 Plan for a period of up to five years.  Chapter 13 Bankruptcy works best for people who have a steady, reliable income.  In most cases the payments made to creditors only amount to a small percentage of what is owned to the creditor.  After completion of the Chapter 13 Plan, whatever debt that remains is discharged and creditors are forever barred from seeking repayment.

The Chapter 13 Process

Much of the Chapter 13 process is similar to the Chapter 7 process. However, in addition to filing the bankruptcy petition with the Court, a Chapter 13 filing requires you to propose a Payment Plan – commonly referred to as “the Plan.” The amount of the plan payment is determined by the debtor’s disposable monthly income and non-exempt assets as well as the amount of secured and priority debts the debtors intends to pay through the Plan. The Chapter 13 Trustee has developed a computer program that helps us figure out as closely as possible what your required Plan payment may be. At Owens / Pinzelik, P.C. we tailor a Plan to meet your financial needs.

While a Chapter 7 Bankruptcy is usually preferable because it is quicker and less expensive, Chapter 13 Bankruptcy can benefit you in the following ways:

  • If you are behind on mortgage payments, a car loan, or face significant tax debt, often you can “catch up” on the payments through the Chapter 13 Plan.
  • If you purchased your car more than 2 ½ years ago, you may only have to pay the amount the car is worth – as opposed to the amount you owe for the car. This is particularly helpful if you are paying off an older car. It makes the car more affordable for you.
  • In some cases, a Chapter 13 will allow you to strip (or get rid of) a second or third mortgage on your residence leaving you with a significantly smaller monthly mortgage obligation. This provision is not available in every situation. Your ability to “strip a lien” depends on the current value of your home and the balances of any mortgages.

Filing Chapter 13 Bankruptcy and preparing a Chapter 13 Plan takes careful preparation and experience. Only an attorney experienced with the complexities of Chapter 13 should advise you whether Chapter 13 Bankruptcy is right for you.

For informational purposes only and not to be relied upon as legal advice.

by John A. Pinzelik

Oregon Transfer-on-Death Deeds – A New Club for your Estate Planning Bag?

I remember when my Dad bought his first 7-Wood.  He was always looking for new and different clubs to add to his golf game.  His golf buddies tried it out and pretty well unanimously decided it was useless.  My Dad, however, consulted with the club pro about incorporating it into his game, and practiced and practiced with it until he knew exactly where and when on the course he could pull it out of the bag and rely on the result.  It soon became his favorite club.  I haven’t golfed with my Dad in a long time now, so I don’t know if he’s still using it but there was a time when that funky 7-Wood was exactly what his game needed.

Just like that 7-Wood didn’t work for everyone, there is a new tool to be considered when drawing up your estate plan that may or may not meet your needs – Transfer-on-Death Deeds.  And, just as my Dad discussed the new club with a professional, the only way to determine if you should be using Transfer-on-Death Deeds is to consult with a competent Oregon estate planning attorney.

Oregon Senate Bill 815

The Oregon legislature passed Senate Bill 815, also known as the Uniform Real Property Transfer on Death Act, signed into law by Governor Kitzhaber on 2 June 2011, giving effect to the changes as of 1 January 2012.

Transfer-on-Death Deeds?

The recent change in the law allows a person to record inter vivos (during life) a transfer of real property to a designated beneficiary (or beneficiaries) that only becomes effective upon the grantor’s death.  Like all estate planning tools, these deeds have possible benefits and concerns associated with them, some (not all) of which are listed below.  You should consult with a competent Oregon estate planning attorney to determine if you should be using Transfer-on-Death Deeds in your estate plan.

Possible Benefits

  • If done properly, can avoid probate proceedings, at least as to the property subject to the deed.  For many people, avoiding the cost and time associated with probate is one of the chief goals of their estate plan.
  • Can be a good way to direct real property into a testamentary trust while still maintaining title in your name during your lifetime.
  • Can avoid the risks associated with granting joint ownership to your intended beneficiary during your lifetime.  Among these risks are the joint-owner’s ability to burden or transfer his or her interest in the property without the need for your consent.

Possible Concerns

  • Transfer-on-Death Deeds are not subject to the same formal requirements of wills or trusts, leaving a potential for fraud or other financial elder abuse.
  • Property transferred by such a deed is potentially subject to claims by the grantor’s creditors for eighteen months, rather than the four months provided by probate proceedings.
  • In the case of joint grantors with right of survivorship between them, a surviving grantor would have the authority to revoke the deed, even where this would clearly be inconsistent with the deceased grantor’s wishes regarding his or her interest in the property.

As with any estate planning tool, the only way to determine if you should throw a Transfer on Death Deed 7-Wood into your estate planning golf bag is to discuss your needs and options with a competent Oregon estate planning attorney.

For informational purposes only and not to be relied upon as legal advice.

by Brook D. Wood

Bankruptcy – What is Chapter 7?


Chapter 7 Bankruptcy – also known as liquidation bankruptcy – is the simplest, most common form of consumer bankruptcy.  In a typical Chapter 7 case, you (the debtor) can keep most, if not all, of your possessions (including a house and car).  Normally you receive a discharge of all qualifying debt within 90-120 days of the date the Chapter 7 case is filed.

Eligibility to file a Chapter 7 bankruptcy is based on your monthly income and expenses.  If your income is equal to or less than the average income, then you will be eligible to file a Chapter 7 bankruptcy.  If your income is more than the average income, then a “means test calculation” is performed to determine whether you are eligible to file a Chapter 7 bankruptcy.  In many cases, even if your income exceeds the average income level by a good deal, you can still qualify for a Chapter 7 bankruptcy.

The means test calculation takes into account your income and IRS allowable expenses to determine whether you can file Chapter 7 even though your income exceeds the median income.  The calculation uses IRS standards but also allows for some, if not all, of your own actual expenses.

We have special tools to help determine whether our clients qualify for a Chapter 7.

The Chapter 7 Process

Once eligibility for Chapter 7 is determined, we work with our clients to prepare and file a Bankruptcy Petition.  The petition consists of many lists, called “schedules,” that list your property and debt, as well as your income and expenses.  The petition also provides information about your financial affairs.  Approximately 30 days after the date the petitions is filed, you will attend a hearing called the Section 341(a) Meeting of Creditors, where a Chapter 7 trustee asks you about the information contained in the petition.  You are required to attend this meeting, however it is less formal than most court hearings.  At the conclusion of the meeting, or shortly thereafter, the Chapter 7 trustee will declare whether your case is an ‘asset’ or ‘no asset’ case.  In most ‘no asset’ cases, you will receive a discharge of your eligible debts in about 60 days.

A ‘no asset’ case means that your assets are exempt and therefore there is nothing the Chapter 7 trustee can sell to pay creditors.  Each state in the U.S. allows debtors to keep certain property up to a specified value and prohibits creditors or the bankruptcy trustee from taking that property.  For instance, in Oregon, an individual debtor can keep a home with $40,000 in equity ($50,000 for married debtors).  There are specific exemptions for clothing, household goods, firearms, cars, and many more.  We help our clients determine the reasonable value of their property and let them know before the 341(a) meeting whether the trustee will want to take anything.  In most cases, you can keep everything.

An ‘asset case’ results when the Chapter 7 trustee determines there are non-exempt assets or assets with a value that exceeds the allowable exemption amount that could be sold to partially pay creditors.  For example, if you own a car outright that is currently worth $5,000.  The exemption for a car in Oregon is $3,000.  In this situation you would have $2,000 non-exempt equity in your car.  So, the trustee could sell the car for $5,000, give you $3,000, and then give the remaining $2,000 to your creditors.  However, in most cases the trustee will accept payment from you for the non-exempt $2,000 in equity, which will allow you to keep your car.  Typically, these payments can be made over time and sometimes the level of non-exempt equity is negotiable.  We help our clients determine the best way to handle assets that exceed the exemption limit.

For informational purposes only and not to be relied upon as legal advice.

by John A. Pinzelik

Don’t Step in That… Common Estate Planning Mistakes, Part 2

We pick up where we left off yesterday, regarding many common estate planning mistakes that can be avoided by consulting a qualified attorney (before it’s too late, of course).

6.  Failing to plan for incapacity.

I don’t know how accurate it is but I’ve heard it mentioned that the average American between the ages of 65 and 70 is six times more likely to suffer some form of mental incapacity than to die.  Given such statistics, it only makes sense to address incapacity in your overall estate plan, using such tools as Advanced Directives and Springing Powers of Attorney.  Failing to plan for incapacity can leave your loved ones with no authority to make important decisions for you regarding care and without access to your assets to pay for such care.

7.  Choosing the wrong appointees.

Selecting your personal representative (“PR”)/executor/successor trustee/health care representative/etc. is an important decision that should not be made based upon something as irrelevant as birth order or potential hurt feelings.  Choosing the wrong person(s) to serve in these roles can only lead to problems in  the carrying out of your express wishes.

Understand that the are positions of great responsibility, both to you and your heirs/devisees/beneficiaries.  As such, these positions should be appointed based upon trust and skill in dealing with potential conflict.  These positions can also involve a lot of work at times.  So, it is important to consider a potential appointee’s availability to give the position the time it demands.  Your daughter, the busy corporate lawyer, may well be qualified but still might not be the best person to represent you when you are gone.

It is also important to discuss the positions and responsibilities with the appointees beforehand, and in some cases a signed acceptance of the appointment may be required.

8.  Failing to name successors.

Choosing your appointees is important and difficult.  Just as important, and probably more difficult, is choosing the successors to those appointees.

Simply naming your PR in your will does not obligate that person to serve in that capacity.  And, though he or she may have agreed to serve before you executed your will, people’s life situations change.  A new job or family situation may not allow them the time to serve or, perhaps,  your named PR is more emotionally affected by your passing than he or she expected, leaving them unprepared to make important decisions.  In cases such as these, your named successor could take up the responsibility.  Without a named successor, however, the job could pass statutorily to an unqualified family member or even a complete stranger.

9.  Failing to properly fund your living trust.

One of the advantages of a trust is its potential to avoid the time and hassle associated with probate.  A trust, however, may only exercise control over assets to which it possesses title.  Failing to properly fund a living trust by transferring title to assets such as real property, financial accounts, etc., to the trust, thus leaving those assets in your name, could not only negate that advantage but also subject those assets to the claims of your creditors and result in the transfer of those assets to heirs other than those you intended.

10.  Believing that family will not fight over your estate.

Most everyone would like to believe that their children were raised to be above the petty squabbling that other families go through when a parent dies.  While this may be true of your family, it is never a bad idea to plan as if it weren’t.  Just as contracts are written to clarify both sides’ obligations and avoid issues where possible, a will or other estate plan should clearly state your wishes to minimize the potential for infighting.  This bickering will only be worsened if the will or other estate plan is faulty in one or more of the other ways this and other blogs have mentioned.

That’s all for now.  If you have examples of estate planning mistakes our office or another lawyer helped you avoid, or if you or a deceased loved one was unrepresented in the drafting of a will or other estate plan and managed to step squarely in one of these traps, leave a comment and we will consider a Part 3.

For informational purposes only and not to be relied upon as legal advice.

by Brook D. Wood