For nearly everybody, it’s vital to plan for the inevitable. If you have children, pets, or anybody else who relies on you to take care of them, you need to make sure they’re taken care of in the event of your death. In addition to taking care of your loved ones, a proper estate plan will allow them to take care of you in the event you become unable to take care of yourself.
Why do I need a will?
If you don’t have one, the state will decide who gets your property when you die. Your property will be divided up by the court based on intestacy laws, which establish a fairly rigid system of inheritance. Generally, your property will first go to your spouse, then to your children, then your parents, then your siblings, and so on. If you don’t have children, it’s important to have a will if you have any interest in all where your property goes upon your death, since it won’t be going to your children.
Maybe you have a charity you’d like to give to, or some items of sentimental value that you want to be given to certain people. Without a will, there’s no way for your heirs to know what goes to whom. If you have no will, and no heirs under intestacy laws, your property still has to go somewhere, that somewhere being to the state.
If you have a child or other relative that you want to leave property to but, for whatever reason, you don’t think they’re up to the task of managing the money for themselves, you can set up a plan to allow somebody else to manage the property for them.
If you have children, you can designate who will care for them if both you and their other parent die. Assuming there’s no reason why that person is not qualified to take care of your children, a court must confirm your designation. If you do not specify a guardian, then a court will have to decide who should take care of your children.
How do I avoid probate? Should I avoid it? What is it?
Probate is the process by which a court oversees the distribution of your property upon your death. Depending on the complexity of your estate, probate can either be a simple process or drag on for years. For most estates, probate is not terribly difficult or expensive, especially considering the value of the oversight provided by the court, but it is still a legal process that can be complicated.
In Washington, if your estate is small enough, your heirs may be able to transfer your property according to your will without the need for probate. Other states may also have similar methods of dealing with small estates.
Most property that has a piece of paper that indicates its ownership can be transferred upon your death without the need for probate, but you have to do some work up front. This would include bank accounts, stocks, vehicles, and real property, among other things. This is fairly easy for bank accounts, but can become more complicated for real property.
You can also create an inter vivos trust, or “living trust.” This is a legal entity that you create, then transfer all of your property to during your lifetime. You are the trustee of this entity, and make all of the decisions about your property while you’re alive. When you die, a successor trustee takes over and distributes the property in the trust according to your wishes, as specified in the trust document. Your successor trustee can do this without going through the court system, but it only works for property you transfer into the trust. Any other property will pass under your will. Even if you have an inter vivos trust, you must still have a will to take care of any property that you haven’t transferred into your trust.
The easiest way to avoid probate is to give things away while you’re still alive. Be careful giving away large sums of money or valuable property though, as those transfers may be reportable to the IRS and may require you to pay gift tax.
How do I avoid paying estate tax?
For most people, estate (or “death”) tax is not something to worry about. Right now, in 2015, you do not have to file a federal estate tax return unless the total value of your estate is $5,430,000 or more. States also have estate taxes. For example, Washington requires that your estate file a tax return if your total estate is worth $2,000,000 or more. State estate tax rates are generally lower than federal rates.
Estate taxes are based on the total value of property, minus certain deductions, that pass to others upon your death. It doesn’t matter how that property passes – by will, trust, contract, joint ownership, anything. If somebody gets something as a result of your death, chances are it will be included in your estate for tax purposes.
Where do I start?
Call or email me to set up an appointment. I’ll send you a questionnaire to fill out and bring with you when we meet. Under certain circumstances, I can make house calls. If coming to an office would be difficult for you, please let me know.
In addition to a will and/or an inter vivos trust, it’s important to have an advanced medical directive (or “living will”) and a health care power of attorney to tell your doctor and your loved ones your wishes in case you cannot speak for yourself. There may be other documents that could be helpful to you, depending on your situation, and you should discuss this with your attorney.
How much does it cost?
The fees to prepare an estate plan vary depending on the complexity of your estate, but are generally very reasonable given the trouble and expense it can save your family in the future. Investing in a good estate plan can save your loved ones tens of thousands of dollars, trouble, and heartache, and provide you with invaluable peace of mind.
Juvenile dependency is the legal process whereby the state intervenes with a family when children have been, or are at risk of being, abused or neglected.
Child Protective Services
Child Protective Services, or CPS, is the arm of the Department of Social and Health Services (DSHS) that investigates allegations of child abuse and neglect. Sometimes, CPS works alongside law enforcement, and sometimes law enforcement is not involved. CPS receives reports from a variety of sources, but most reports are from people who are “mandatory reporters.” In Washington, and most other states, people in certain positions or with certain professional licenses are required to report any possible child abuse. The threshold is low, and the consequences for not reporting are high, so when in doubt, these mandatory reporters will usually err on the side of reporting. At that point, CPS will begin an investigation.
Can CPS take my children?
CPS has no independent authority to remove children from the home. They can, however, take the matter to a judge who can order that the children be removed from the home. Law enforcement does have the authority to remove children from the home, and place them in protective custody, without a court order.
What can I do if my children are taken?
If your children are removed from the home, either by law enforcement or by court order, you have the right to be heard by a judge within 72 hours. This is called a Shelter Care Hearing. At a Shelter Care Hearing, the judge looks at the allegations, and will consider evidence presented by DSHS and by the parents, and determine if there is reasonable cause to believe that abuse or neglect occurred. This is a fairly informal hearing, and the burden of proof DSHS has to meet to keep the children out of the home is very low. You may also be appointed an attorney if you cannot afford one at this hearing, and you can also waive your right to a hearing. Before you make any decisions, you should consult with an attorney with experience with in juvenile dependency matters.
Your next opportunity to contest the removal of your children is at a trial. This is a more formal hearing, where all the rules of evidence and trial procedure apply, although there is no jury. The state must prove by a preponderance of the evidence that your children were abused or neglected in order for the court to continue to be involved in your family. You also have the opportunity to present evidence in your defense, and of course have the right to an attorney, either at your own expense, or appointed by the court if you cannot afford an attorney. If DSHS proves its case against you, the court may require you to engage in certain services, such as psychological and substance abuse evaluations and counseling, parenting classes, and supervised visitation, before returning your children to you. If, over time, you do not complete these services, or you do not make any process, the state can petition to permanently terminate your parental rights.
Where do I go for help?
If you meet certain financial guidelines, if you find yourself in court, the court will appoint an attorney to represent you. If no, you can hire an attorney to help you through the process and defend your rights as a parent. There are a number of attorneys with experience in juvenile dependency in the area. Some family law attorneys will represent clients in juvenile dependency proceedings, but many will not because it’s such a specialized area of law. Make sure whoever you hire has the knowledge and experience to represent your interests as a parent.
Every Washington state agency is required to provide citizens notice and an opportunity to be heard before taking administrative (non-criminal) action. This can include actions like suspending a professional license, imposing a fine for violating a rule, or refusing to grant a license. Most state agencies outsource the requirement that they provide court-like appeals processes to the Office of Administrative Hearings (OAH). After the agency takes its initial action, such as denying your application to work at a childcare facility, you can appeal that decision to OAH, where you will get a hearing before an Administrative Law Judge (ALJ) who will hear your evidence, and the evidence provided by the agency supporting their decision. The ALJ will then make a ruling, and that ruling can then be reviewed by a higher level of administrative appeal. Each agency has slightly different appeal procedures. Ultimately, agency decisions can be reviewed by a Superior Court judge.
Some agencies conduct their own hearings, before their own ALJs, typically just called hearing officers. One notable example of this is the Department of Licensing (DOL). When you initially appeal a decision by DOL, that appeal will typically go before a DOL hearing officer who will make a determination that you can then appeal to Superior Court. The Department of Health also conducts its own hearings, as well as health care licensing boards such as the Board of Nursing and Pharmacy Board.
There are specific rules that you must follow in order to not waive, or give up, your right to appeal to an ALJ or to Superior Court. If you don’t follow these rules, you may give up your opportunity to appeal and be stuck with the agency’s decision. It’s important to do your homework, or get the help of an attorney with experience with administrative appeals.
If an administrative hearing doesn’t go your way, you usually have the right to appeal that decision to the Superior Court in the county where you live. The process for doing this varies depending on the type of issue appealed, and in some cases you may be able to be reimbursed some of your costs if you win the appeal. If the Superior Court rules against you, you can petition the Court of Appeals to hear your appeal, but in most cases, that court is not required to hear your appeal. But remember, you only have a limited time to appeal, and if you miss the deadline, you lose that right forever.
Every level of government - federal, state, and municipal - must provide some due process before taking a negative action against you. This includes, among other agencies, the military, Social Security, and Immigration, to name a few.
Your Right to Counsel
The military has attorneys who are specifically assigned to be defense counsel for service members facing court-martial or adverse administrative actions such as separation or reduction boards. These attorneys are usually more senior than the prosecutors, and are nearly always excellent attorneys who fight hard for their clients.
You also have the right to hire your own attorney, in which case you will still have the your military defense counsel in addition to your civilian attorney. You don’t need anybody’s approval to hire a civilian attorney, and you won’t hurt your military counsel’s feelings if you decide to do so, but make sure you weigh your options before making any decisions, since in most cases your military defense counsel will do an excellent job. You may hire your own attorney to help in virtually any military administrative, criminal, or appellate matter.
If you do decide to explore hiring a civilian attorney, feel free to contact me. I’m happy to discuss your case with you at no charge, and give you some ideas about other attorneys you might want to contact if you live in another area.
Uniform Code of Military Justice (UCMJ)
Military justice (either court-martial or non-judicial punishment) for full-time and reserve military members is governed by the UCMJ, whereas military justice for Air and Army National Guardsmen is governed by state codes of military justice. If a Guardsman has been called to federal service, then the UCMJ applies to him/her too. Some states have codes of military justice that are modeled after the UCMJ, some states have entirely home-grown codes, and some states have no code of military justice at all. In states without codes, crimes committed by Guardsman are prosecuted under the general state criminal code, and can also be dealt with administratively (e.g., separation from the service, reduction in rank, reprimand, etc.).
The Court-Martial Process
Anybody subject to the UCMJ can sign a charge sheet, stating under oath that to the best of their knowledge, somebody has committed a crime under the UCMJ. This called “preferral” of charges. Once a charge is preferred, the charge sheet is served on the accused, the accused is detailed a military defense attorney, and the charge is then forwarded up through the chain of command. Commanders can refer the charge to different levels of court-martial – summary, special, or general court-martial, depending on the level of the commander, and how serious the allegation is.
There are three levels of court-martial. Each level of court-martial is jurisdictionally limited in the punishment it may impose: A summary court-martial may sentence an accused to confinement for one month. A special court-martial may impose no greater a sentence than confinement for one year, and a bad-conduct discharge from the service. A general court-martial may impose any sentence authorized for the offense charged, to include death when authorized, and a dishonorable discharge. Each level of court-martial may also impose forfeiture of pay, reduction in in rank for enlisted personnel, restriction to specified limits, hard labor without confinement, and a fine.
A service member has different rights depending on the level of court-martial. For a special or general court-martial, the accused has the right to a jury, and the right to be represented by counsel at trial. The accused has no right to a jury, counsel, or even a military judge at a summary court-martial. Instead, the accused is tried by an officer who may or may not have any legal training. The level of court-martial, and the charges, determine the maximum sentence.
Court-martial pretrial procedure is similar to most civilian systems. An accused may be confined, or have certain limits placed on his liberty, pending trial, although there is no system of bail. Rules of discovery require the government to disclose nearly everything in its possession to the defense. The government and the accused may enter into a pretrial agreement, although these are somewhat different than most civilian systems. There are also speedy trial rules and the parties may request, and the court may order, a psychological evaluation of accused to determine if he/she is competent to stand trial.
A court-martial trial is nearly identical to any civilian trial. There is a jury, a judge, a prosecutor, a defense attorney, an accused, and a court reporter. The accused is arraigned, the parties make motions, question the jury, and make opening statements, testimony is taken, and finally the parties make closing arguments. The military judge runs the courtroom and rules on legal issues.
If the accused is tried by a jury, the jury will also determine the sentence. If the accused is tried by a judge, the judge will determine the sentence. Court-martial sentencing proceedings are more involved than most civilian sentencing proceedings. In at court-martial, parties may present additional testimony and other evidence, and argue for an appropriate sentence.
In every court-martial, the accused is entitled to some form of appeal. The type of appeal depends on the type of the court-martial, and the sentence imposed. In any type of appeal though, you are entitled to military appellate counsel, and you may also hire your own attorney.