Resources

Answer

Choosing the right attorney requires thought and care. In most cases you’ll work closely with your attorney for a long time, and you may need to discuss matters that are personal and, sometimes, painful. Take time to find the right lawyer—one that you feel comfortable working with.

Don’t just search the yellow pages for a big advertisement. Ask friends or professionals that you know or work with. If you already have a lawyer for estate or other matters, he or she might make helpful recommendations. You also can use your computer to go online and find out what you can about attorneys in your area who handle the sort of case you want to bring.

Once you’ve begun to consider an individual attorney, take time to meet the lawyer and his or her staff and get a feel for them as people. Any attorney worth hiring will be glad to meet with you and answer your questions about the merits of your case, attorneys’ fees and other costs.

You also need to make sure you hire an attorney who is qualified to handle the issues involved in your case. Most lawyers focus their work on certain areas of practice—and it’s usually best to find an attorney who is experienced in the sort of claim you are considering. What sort of cases has the attorney handled in the past? Does he or she have the resources—staff, partners and monetary—to handle your claim? What sort of success has he or she had?

Answer

The litigation process is divided into four phases.

Stage One: The first stage involves the investigation and filing of the complaint. During this stage, the attorney and staff investigate the factual basis of the claim and legal theories of liability. The attorney may hire investigators, expert witnesses and obtain documents that are necessary to evaluate and pursue the claim. After the complaint is filed, the defendant files what is known as an "answer." The answer denies the factual allegations stated in the complaint and denies any liability for the claim.

Stage Two: The second stage of the litigation process is known as discovery. Discovery allows both the plaintiff and defendants to send written questions to the opposing party (called "interrogatories") that need to be answered under oath. It allows production of documents from the other side. It allows for out-of-court testimony called a "deposition." As a plaintiff, you and your lay and expert witnesses (such as treating physicians) will be deposed. The discovery phase allows the parties to subpoena third parties who are not part of the lawsuit to obtain documents or testimony.

Stage Three: The third stage is known as pre-trial motions stage. During this stage, the parties bring pre-trial motions in order to (a) have the case dismissed or the issues narrowed; (b) to obtain discovery that was not allowed; (c) to establish the procedures to be used at trial.

Stage Four: The fourth stage is the resolution of the case. Most cases settle at a mediation, or following an exchange of demands and offers. Cases that don't settle move forward to an arbitration or trial. During this phase, the parties present their case to a judge or jury by way of live testimony and submission of exhibits. After hearing the evidence from all sides and listening to the instructions of law given by the judge in the case, the jury renders a verdict. There is a right to appeal from a verdict that can be exercised by either party. The appeal process generally takes two years.

Answer

This is an important question, and the answer can be different in each case. Most lawyers in personal injury or wrongful death cases will agree to handle a case on either an hourly fee or a contingency fee basis. An hourly fee involves paying a retainer of a certain amount, and then being billed on a monthly basis for work that is done. The more hours worked by the lawyer, the more the fees involved in the case. Lawsuits are expensive, and a successful lawsuit requires a tremendous investment or time and cost. There is never any guarantee of a successful outcome in such an arrangement and, if the case were lost, the client is out all fees paid to the lawyers. Most people just can't afford to pay a law firm to represent them in a case.

Fortunately, our civil justice system still allows lawyers to charge what's called a "contingency fee."

A contingency fee is a fee that is based on the outcome of the case. If the case is lost, no fee is charged. If the case is won, a percentage of the recovery is charged. Sometimes that percentage reflects the amount of work that has to be done. In other words, the percentage may be lower if the case settles early, a higher percentage if the case settles close to trial or after trial starts.

A separate issue involves the costs of the lawsuit. Filing a lawsuit requires payment of a filing fee. Securing medical records results in charges. Taking depositions requires payments to a court reporter and payment of doctors when they testify. Hiring expert witnesses can be expensive. Copying charges, fax charges, telephone charges, travel expenses, etc. may also be involved. There are many other potential kinds of costs that may be associated with the handling of a given case. These costs are ultimately your responsibility as the client. However, most lawyers will agree to advance those costs during the litigation and then secure reimbursement for them at the end of the case.

Answer

The first step in filing a lawsuit is selecting and then meeting with your attorney to prepare the lawsuit. The attorney will help you investigate the case, determine what parties may be liable to you and select the theories of liability that will be included in the lawsuit. Once this process is completed, the attorney will file and serve a "complaint.". The complaint will name you as the plaintiff and the parties that are at fault as defendants. The complaint will state the facts of your claim and the legal theories of liability you are pursuing (for instance, negligence, product liability, consumer protection, etc.). The complaint will set forth the kind of damages you are asking for but will rarely set the amount of damages that you are claiming.

Answer

Bringing a claim usually involves filing a lawsuit with the courts and having it served upon the Defendants, or people that you are suing. However, much work must be done before the filing of such a lawsuit.

An appropriate investigation needs to be done to establish the basis of the lawsuit. Records need to be secured, witnesses may need to be interviewed, legal research may become necessary, and experts may need to be hired who can express opinions on the issues involved in the case. Only after proper due diligence has been done to establish the basis for a lawsuit, can a complaint be filed with the courts.

In some instances a claim can be filed with the insurance company by letter. It is sometimes possible to exchange information directly with the insurance company in order to reach an agreement on a proper evaluation of the case and a settlement of the matter without the need for filing suit. However, in today's climate and with the attitudes of most insurance companies, this is seldom possible.

Answer

An estate plan is composed of two parts: asset planning and personal planning. With regard to asset planning, an Estate Plan is simply an arrangement for the management and disposition of a person's property during lifetime and at death. This can be accomplished in a variety of ways…by a will, trusts, gifts made during life, or a combination of these. With regard to personal planning, an estate plan is similarly an arrangement for the care and management of a person and his or her assets during life. Although different people might have different documents that make up their estate plan, for most people, an estate plan is composed of one or more of the following:

• Community Property Agreement
• Will
• Powers of Attorney for medical and financial decisions
• Health Care Directive (also called a Living Will)
• Authorization for Disclosure of Protected Health Information
• Trust Agreements
• Insurance Contracts
• Business Agreements
• Other Contracts

Answer

A power of attorney is a legal instrument that authorizes someone to act as the principal’s agent…to act in the principal’s place as if the principal were making the decision. If the power of attorney survives the incompetence of the principal, it is called a durable power of attorney. A power of attorney that gives the agent the broadest powers is called a general power of attorney. Alternatively, if the Power of attorney is only for specific acts, it is a special power of attorney.

Answer

There are two potentially applicable estate taxes for Washington residents: federal and Washington state estate tax.

Currently the federal estate tax applies to estate valued at over $5 Million. However, under current law, if you have over $1 Million you have a potentially taxable estate for 2013. In the event your estate is nearing $1 Million including insurance proceeds, you should consider additional tax planning that a good estate planner can provide.

The State of Washington also imposes an estate tax on estates that are valued at over $2 Million.

Answer

Your estate is made up of probate and non-probate assets. And, different devices control the disposition of the probate and non-probate assets. For example a Will can control who receives your house upon your death, but it generally cannot control who receives your IRA which is a non-probate assets. An estate planner will need to implement devices to control the disposition of both probate and non-probate assets.

Answer

The use of a Will in estate planning is the primary method for passing property in Washington State. A will generally covers all probate property and generally does not apply to non-probate property. In a will, you can name a guardian for your minor children, specify how you want your property to pass, and even set up testamentary trusts for your spouse or children. Often times a parent desires to keep their assets in a trust after their death until their children reach a certain specified age to help the children use the money wisely. All of this can be accomplished by a will.

The distribution scheme in your will can be as varied as your imagination. However, the most typical distribution scheme is where a person gives everything to his or her spouse and if the spouse is not alive, then the estate passes to the children. And, the property can pass to the children either in trust or outside of trust. Another provision in most wills addresses where your property goes should a child of yours predecease you. This type of distribution concerning the children is called Per Stirpes or it is also referred to as distribution by right of representation. It provides that in the event a child of yours predeceases you then his or her share will instead go to his or her own children to be shared equally. If your deceased child has no children, then his or her share is reallocated equally among your remaining children.

Answer

The living trust is an alternate means to dispose of your estate. The benefits of a living trust is that it allows your estate to avoid probate and it is more private because it need not be filed with the court like a Will. However, the living trust is generally more expensive to establish and more complex to administer because it requires a person to transfer all of his or her assets into the trust. No longer would you own your house outright. Instead, you would own your house as the Trustee of your trust. Additionally, in some states like California, the cost of probate is determined as a percentage of the estate which can make probate very expensive. In Washington, this is not the case. Though your choice, in Washington, in most cases a will works better for most people. Also, probate can be avoided by the use of a community property agreement. However, you must also seek competent legal advice as to which process be it a will, a trust or a community property agreement, will best meet your estate planning needs.

Answer

Washington is a community property state. However, this is different from two spouses signing a Community Property Agreement. A Community Property Agreement is an agreement that specifies three things: (1) all property owned by the husband and wife is community property; (2) all property acquired in the future by the husband and wife is community property; and (3) it provides for the disposition of the property at the death of one of the spouses. Even though this might sound similar to the provisions contained in the will, the use of the community property agreement generally allows the spouses to avoid probate when the first of the couple passes away. Without some form of estate planning there is no requirement that all of one spouse's property goes to the surviving spouse at death. Planning is necessary. Before using a community property agreement, competent legal advice should be attained.

Answer

As discussed, your estate consists of both probate and non-probate assets. Non-probate assets such as your retirement accounts and life insurance are not generally covered by a will nor by a trust. When you set up those accounts, you listed beneficiaries. In order to fully integrate your estate plan, your estate planning attorney must provide you with beneficiary designations for those non-probate assets. Then, you will need to update the beneficiary designations with your plan provider in order to make the estate plan fully integrated.

Answer

Probate is the legal process through the court system by which the affairs of a deceased person are handled which include settlement of debts and expenses and the transfer of title of the deceased person to his or her beneficiaries. In Washington, the probate process need not be a lengthy process. Each estate probate process is different based on the estate (the property held in the estate and the debts of the decedent) and the documents involved. If there was a will, then a person is said to have died testate and the will controls the disposition of the property and the appointment of who will handle the estate. If a person dies without a will, then the person is said to have died intestate and state law controls who will handle the probate process and the disposition of the property. The probate process in each state is different with a process in Washington being one of the most efficient processes in the United States.

Answer

When a person dies, necessarily there must be some time of administration to take care of the decedent's assets. It could be very simple or it could be more complex. Generally, probate is required unless one of the following three exceptions exist: (1) the decedent died with no real property (land or house) and less than $100,000.00; (2) the decedent is the first to die between two spouse who have a valid Community Property Agreement; or (3) all of the decedent's assets were placed in a Revocable Living Trust.

Still, even though "probate" may not be necessary, some type of administration is always necessary. For example, state law requires that every Will must be filed with the county courthouse after a death (RCW 11.20.010). Furthermore, state law requires that, upon death, both the Department of Social and Health Services and the Washington State Department of Revenue (RCW 82.32.240) must receive notice of the death.

Answer

Generally, the Personal Representative is charged with collecting all of the decedent’s assets, verifying and paying all of the decedent’s legitimate debts and distributing the assets of the estate in accordance with the decedent’s will or in accordance with state law.

The Personal Representative is responsible to verify the value of all assets that pass through the probate process and the value of all assets that pass outside of the probate process.  For example, the proceeds of life insurance paid directly to the beneficiary of the life insurance as a value that the personal representative must take into consideration and value in the estate, however, the insurance proceeds are not part of the probate assets and pass directly from the insurance company to the named beneficiary outside of the probate process.  Similarly, bank account that are titled joint tenancy with right of survivorship pass to the surviving named joint tenants outside of the probate process. 

The Personal Representative is responsible for taking into possession all assets that pass through the probate process.  The Personal Representative is also responsible to verify the decedent’s debts and make arrangements for payment of those debts.  Generally, the probate estate assets are responsible first for payment of those debts, however, if the balance of the estate is not large enough to pay the debts, then certain assets that pass outside of the probate estate such as joint tenants with right of survivorship bank accounts and the recipients of those accounts may need to reimburse the estate for their proportionate share of those debts.

The Personal Representative is responsible at all times during the administration of the estate to account for the assets received into the probate estate, all income received and all expenditures made during the probate process. It is essential that the personal representative maintain accurate records.

Personal Representatives are generally granted “non-intervention powers” meaning that the court will not intervene or interfere with the administration of the estate.  Non-intervention powers are available in estates that are solvent.  This is the reason why the probate of Washington State estates are generally no more complicated than the settlement of a living trust.  However, Personal Representatives are advised that when proceeding with major actions in the estate, that there are notices required to be given to the beneficiaries and often times it is advisable to seek Court approval for those major actions.  Therefore, before any major action is taken by the Personal Representative, he or she should seek advice from legal counsel.
The Personal Representative is required to prepare an inventory of all assets of the estate. It is also the Personal Representative’s duty to fairly value all of the assets of the estate for tax purposes.

Further, a Personal Representative needs to be fully apprised to the legal process and their duties and should seek legal advice in defining those duties and the process.

Administration of living trusts

In Washington State the administration of a living trust is substantially the same as the administration of a probate estate wherein the Personal Representative has been granted non-intervention powers.  The duties of the Trustee in settling the estate are substantially the same as the duties of the Personal Representative as set forth above and the notice requirements and the advice to seek the advice of legal counsel in major transactions and the process of settling the trust is likewise applicable to Trustees.

Wherein the Personal Representative is to prepare and inventory of the estate, a Trustee is required to prepare an accounting of the assets in the trust.  The end result is the same.  Likewise, the Trustee, if there is no probate estate it is responsible to have the estate valued for tax purposes.

Answer

In January of 2012, the Washington State legislature made sweeping changes to the Washington Trust Act. Now, in Washington State, the administration of a living trust is substantially the same as the administration of a probate estate wherein the Personal Representative has been granted non-intervention powers. The duties of the Trustee in settling the estate are substantially the same as the duties of the Personal Representative as set forth above and the notice requirements and the advice to seek the advice of legal counsel in major transactions and the process of settling the trust is likewise applicable to Trustees. The most important change to trust administration is the duty to provide notice of the existence of all irrevocable trusts (a revocable living trust typically becomes irrevocable upon death) as well as periodic notice of the administration of the trust. Whereas the Personal Representative prepares an inventory of the estate, a Trustee is required to prepare an accounting of the assets in the trust. The end result is the same. Likewise, the Trustee, if there is no probate estate, is responsible to have the estate valued for tax purposes.

RCW 11.97.010 provides, in pertinent part, the necessary notice to all beneficiaries a trustee must make:

Within sixty days after the date of acceptance of the position of trustee of an irrevocable trust, or the date the trustee of a formerly revocable trust acquires knowledge that the trust has become irrevocable, whether by the death of the trustor or otherwise, the trustee shall give notice of: (a) The existence of the trust, (b) the identity of the trustor or trustors, (c) the trustee's name, address, and telephone number, and (d) the right to request such information as is reasonably necessary to enable the notified person to enforce his or her rights under the trust, to all persons interested in the trust, as defined in RCW 11.96A.030, and who would be entitled to notice under RCW 11.96A.110 and 11.96A.120 if they were a party to judicial proceedings regarding the trust. If any such person is a minor and no guardian has been appointed for such person by any court, then such notice may be given to a parent of the person. If a person otherwise entitled to notice under this section is a charitable organization, and the charitable organization's only interest in the trust is a future interest that may be revoked, then such notice shall instead be given to the attorney general. A trustee who gives notice pursuant to this section satisfies the duty to inform the beneficiaries of the existence of the trust. The notice required under this subsection (2) applies only to irrevocable trusts created after December 31, 2011, and revocable trusts that become irrevocable after December 31, 2011, provided that all common law duties of a trustee to notify beneficiaries applicable to trusts created or that became irrevocable before such date are not affected.

Once the initial notice is sent to beneficiaries, RCW 11.96A.070 instructs the Trustee to also send periodic reports about the trust that include the following:

1. A statement of receipts and disbursements of principal and income that have occurred during the accounting period;
2. A statement of the assets and liabilities of the trust and their values at the beginning and end of the period;
3. The trustee's compensation for the period;
4. The agents hired by the trustee, their relationship to the trustee, if any, and their compensation, for the period;
5. Disclosure of any pledge, mortgage, option, or lease of trust property, or other agreement affecting trust property binding for a period of five years or more that was granted or entered into during the accounting period;
6. Disclosure of all transactions during the period that are equivalent to one of the types of transactions described in RCW11.98.078 or otherwise could have been affected by a conflict between the trustee's fiduciary and personal interests;
7. A statement that the recipient of the account information may petition the superior court pursuant to chapter 11.106 RCW to obtain review of the statement and of acts of the trustee disclosed in the statement; and
8. A statement that claims against the trustee for breach of trust may not be made after the expiration of three years from the date the beneficiary receives the statement.

Answer

The Personal Representative of the estate or the Trustee of a revocable living trust has an election of either filing a Notice to Creditors, or not filing a Notice to Creditors. 

Not Filing Notice to Creditors

All creditors are required to notify and make claim against the estate for their claims due.  If no Notice to Creditors is filed, then the creditor must present their claim within 24 months after the decedent's date of death for the creditor to collect payment, otherwise, the creditor will be barred.  The filing and service of claims, within the 24-month period, follows the same procedure as the filing and service of claims with the four-month procedure (below).

Filing Notice to Creditors

If a creditor’s claim notice is filed and the publication required is made, then there is a four-month creditor’s claim period.  During that four month period of time, all claimants must file their creditor’s claims with the Personal Representative or notice agent.  The Personal Representative and notice agent shall exercise reasonable diligence within the four month time limitation to discover reasonably ascertainable creditor’s of the decedent.  The Personal Representative or notice agent should review the decedent’s correspondence (including correspondence received after the date of death) and financial records (including checkbooks, bank statements, income tax returns, etc.). The Personal Representative and notice agent should also inquire if the deceased heirs or relatives whether they are aware of any creditors.  If there is a known creditor, the Personal Representative or notice agent must notify the creditor in writing with all of the information concerning the creditor’s claim period and advising them that they need to file a claim within the four month period.

Answer

Whether estate taxes are owing is determined based upon when the decedent died. For deaths occurring in 2010 there is no federal estate tax. Under current law, for deaths occurring in 2011 and thereafter, there is a $1 Million exemption meaning net estates having a value in excess of $1 Million will be taxed for federal purposes. The State of Washington also imposes an estate tax on estates that are valued at over $2 Million. It is generally necessary for the Personal Representative or in the case of a trust, a Trustee, to file federal income tax returns for the decedent and for the decedent’s estate (or the trust estate). Typically, the Personal Representative or Trustee will retain an accountant to assist and comply with these requirements.

Answer

A Personal Representative is entitled to a fee from the estate for his or her services. Both the Personal Representative’s fee and the legal fee are based on reasonable compensation for services rendered, taking into consideration the degree of responsibility involved, the work necessary, the complexity of the case, and other factors, and all fees are subject to review by the heirs and by the court. Court costs in connection with the probate are governed by law and include such required expenses as the $230.00 filing fee charged by the Clerk of the Court and publication of the Notice to Creditors.

In the administration of a trust, similar services and the charging of fees are based on the same factors as are charged in a probate estate.