Wills and Estate Planning -- Engaging an Attorney

 by Lonnie C. Rich

 Once you have decided that you want to get your Will, Trust and other planning documents prepared, you need to pick an attorney.  How do you do that?  How much does it cost? How long does it take?  What do I need to bring to the first meeting?

The best way to pick an attorney is to choose someone that 1) you know personally and trust, and 2) has experience with estate planning.  The next best way is to ask for a referral from a trusted friend or professional advisors: CPA, financial advisor, or insurance agent. Remember, you may need to return to the attorney on multiple occasions as life changes require you to update your current plan and documents, so be sure you are comfortable with whomever you choose. 

In your first conversation with an attorney, ask how they charge and what is included.  RRBMDK, like many attorneys, works on an hourly basis; but we give a fairly narrow range of the likely fees.  This has the disadvantage of a little uncertainty, but has the advantage of fairness – some pay a little more or little less than others because their situation or desires take more time or less time than others.  Other attorneys offer a flat fee which is usually based on the higher end of the estimated time to perform the services.  The flat fee offers certainty, but means that you may pay more than the actual work justifies on an hourly basis.

As to how long it takes, that usually depends on your urgency.  Some attorneys routinely take several months.  At RRBMDK, it is usually 2-3 weeks from start to finish; but we can work faster in an emergency.

What do you need for the first meeting?  Some attorneys ask you to fill out a lengthy questionnaire. At RRBMDK, our experience is that many potential clients wither under such a load; and then they never complete the process.  Rather, we ask for a simple family tree and a one-page financial – 20 minutes of your time. 

Lonnie C. Rich, a partner at RRBMDK, has been helping client with Estate Planning in Northern Virginia for over 30 years.  If you have questions, give him a call.

Marriage Equality

On October 6, 2014, the U.S. Supreme Court let stand the decision in Bostic v. Schaefer, which held that same-sex couples cannot be denied the right to marry.  There are many implications for the LGBT community, especially in estate planning. 

For same-sex couples who can now get married in Virginia, you will have all of the benefits of a traditional marriage.  1) You will have an unlimited marital deduction, which means that same-sex couples can give an unlimited amount during their life or at death to their spouse without any estate or gift taxes. 2) Each individual has a $5.34M personal exemption from estate taxes; and with an election can combine that exemption with their spouse for a $10.68M exemption for both together.  3) As spouses, you can make an election which would double your annual exclusion amounts from $14,000 to $28,000 for purposes of annual gifts to as many people as you want.  4) Now, a same-sex spouse will be able to make health care decisions even if there is not a formal written advance medical directive.  This has always been the law for a traditional spouse. 5) Same-sex couples will be able to take title to property as “tenants by the entireties,” which provides significant creditor protection for the non-debtor spouse.

The recent extension of the right to marry to same-sex couples has many implications, not just in estate planning, but in other areas of the law, such as family law and retirement, both of which involve individual rights and responsibilities.   

Consideration of Criminal Records in the Hiring Process

          Criminal background checks have always been somewhat of a controversial tool for reaching hiring decisions.  The federal law that prohibits job discrimination, Title VII of the Civil Rights Act of 1964, protects applicants and employees from discrimination in every aspect of employment, including screening practices and hiring. Title VII protects employees and applicants from policies or practices that disproportionately screen out members of a particular race, ethnicity, or other protected class.  Title VII does not bar criminal background checks, but it does govern how such information may be used by an employer.

          The Equal Employment Opportunity Commission (EEOC) is the federal agency that enforces Title VII.  In April 2012, the EEOC issued updated guidance (Guidance) for employers, explaining how they can screen out applicants who might be dangerous or pose a safety risk without engaging in discrimination.[1]  The concern about criminal background checks is based on data showing that arrest and incarceration rates are much higher for African Americans and Latinos.[2]  The EEOC makes clear that employers will violate Title VII if they intentionally discriminate among individuals with similar criminal histories or if their policies have a disproportionate adverse impact based on race, national origin or some other protected status and employers are unable to demonstrate “business necessity” for utilizing an applicant’s criminal history in making a hiring decision. [3]

The EEOC explains that in deciding whether a particular offense should disqualify an applicant or employee, employers must consider:

·         the nature and gravity of the criminal offense or conduct

·         how much time has passed since the offense or sentence, and

·         the nature of the job (including where it is performed, how much supervision and interaction with others the employee will have, and so on).

According to the EEOC, employers should give applicants with a record an opportunity to explain the circumstances and provide mitigating information showing that the employee should not be excluded based on the offense.

Protected persons who are denied employment because of a criminal background check may have viable Title VII claims where:

– Denial of employment was based solely on an arrest;

– The employer used a blanket exclusion that screened out all persons who have ever been convicted of a crime;

– The exclusion did not take into account the nature of the crime, the amount of time elapsed since it occurred, and the nature of the job;

– The employer did not provide an opportunity for the excluded person to explain a criminal matter;

– The employer has a reputation for excluding persons with criminal backgrounds; or

– The employer has expressed stereotypical views concerning the criminality of certain racial or ethnic groups.

The EEOC identified the following "Best Practices" that employers can take when considering arrest and conviction records in making employment decisions:

– Develop written policies and procedures for screening applicants and employees regarding criminal conduct;

– Train managers, hiring officials, and decision makers regarding implementation of the policies and procedures;

– Limit inquiries regarding criminal records to those that are "job related for the position in question and consistent with business necessity"; and

– Keep information regarding applicant and employee criminal records confidential.

Of note is that Virginia law protects applicants with criminal records that have been expunged.[4]  An employer may not ask applicants to disclose expunged criminal charges, whether on an application form, in an interview, or in another forum.  An applicant need not refer to any expunged charges if asked about his or her criminal record.

            EEOC’s Guidance is not binding law, but it sets the standard that the EEOC will use when evaluating discrimination complaints based on the use of criminal history information in employment decision.  However, courts may use it in their analysis of these issues and employers need to act carefully.   Most hiring practices almost always benefit from review by an attorney familiar with these laws and recent decisions. You can contact one of RRBMDK’s employment attorneys if you have any questions about the recent EEOC Guidance or other aspects of your hiring practices.

[1] EEOC Enforcement Guidance: Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, Issued April 25, 2012.  http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm#sdendnote128anc

[2] See Pew Ctr. on the States, Collateral Costs: Incarceration’s Effect on Economic Mobility 6 (2010), http://www.pewcenteronthestates.org/uploadedFiles/Collateral_Costs.pdf?n=8653(“Simply stated, incarceration in America is concentrated among African American men. While 1 in every 87 white males ages 18 to 64 is incarcerated and the number for similarly-aged Hispanic males is 1 in 36, for black men it is 1 in 12.”). Incarceration rates are even starker for 20-to-34-year-old men without a high school diploma or GED: 1 in 8 White males in this demographic group is incarcerated, compared to 1 in 14 Hispanic males, and 1 in 3 Black males. Pew Ctr. on the States, supra, at 8, Figure 2.
[3] 42 U.S.C. §§ 2000e-2(k)(1)(A)(i), (ii), C.
[4] Va. Code Ann. § 19.2-392.4

Characteristics of At-Will Employment

     The vast majority of employment relationships in place today are at-will.  That means that there is no contract specifically governing the employment relationship between the employer and a given individual employee.   At-will employment generally has the following characteristics:

•  Unspecified duration.  At-will employment is characterized by an undefined period into the future, but without a commitment for a certain minimum period.  The vast majority of employer-employee relationships are at-will.

      For example, a small business retail establishment who hires someone to work as a sales associate either full or part-time is typically an at-will employee.  Generally, employers advertise their staffing needs, prospective employees apply, and then the employer hires one or more applicants.  Often the new employee is provided employment forms, but not typically a written contract binding them to service for a certain period of time. 

• Can be terminated without cause.  Generally the employment relationship remains intact so long as the relationship remains mutually beneficial to both employee and employer.    While no cause is required to terminate the at-will employment relationship, causal explanations for terminations related to financial hardships or corporate mergers are common.  Termination for cause might include, stealing, lying, failing a drug or alcohol test, falsifying records, insubordination, and deliberately violating company policy.   

When an employee finds himself out of a job, he or she often struggles to understand why.  However, the law does not require employers to provide a cause, or explanation, for the termination in an at-will employment relationship. 

•  Can be terminated without notice.   Employees customarily give current employers a period of notice before commencing employment with a new employer, particularly if the new employer is in the same field as the current employer.  However, this notice period is not required in at-will employment relationship and is done merely as a courtesy to the old employer.  

           So which employees are not at-will employees?  Employees covered by a written contract, such as a union agreement or other contract, are not at-will employees.  Employment contracts are common for temporary employees and high level executives among other individuals.  It is also possible to have an implied contract based on your employer’s words or actions.

      

           In addition, under the laws of Virginia (and many other jurisdictions, including D.C.) the discharge of an employee for exercising rights guaranteed by public policy (as embodied in a specific statute) may give rise to an action for wrongful termination.

            While employers have wide latitude to dismiss at-will employees without notice or cause, the law does not permit discrimination, including terminations, based on race, color, national origin, gender, religion, age, or disability.  If you suspect you have been wrongfully terminated, it is best to talk to an attorney about your particular situation.   By first talking with any of the RRBMDK attorneys that handle employment matters, you’ll be able to make an informed decision about your situation and whether legal action makes sense.

Structure of Mediation

If you can persuade the adversaries in a difficult dispute to agree on the structure for mediating the dispute, you may be able to avoid having to pay thousands of dollars in legal fees to resolve the same issues by litigation. As stated, the structure of the mediation is critical.

                                                                                                                       

The parties must agree on a Chair/Moderator/Facilitator who will chair the discussion(s) and

1. Obtain the express agreement of all of the participants to comply with a mutually acceptable set of Behavioral Rules for a Successful Discussion (See the checklist below) established by the Facilitator and the participants. These must be finalized before any discussions begin and everyone must agree that the Facilitator has the absolute authority to manage the discussion and apply the Rules;

2. Help to identify the ultimate common goal(s) of the parties; For example, “To determine whether or not the parties are willing to work together to resolve any legitimate issues between them that would prevent going forward with the construction and sale of the subject property”.

3. Identify the issue(s) that each party wishes to discuss and the method for determining the order in which each issue will be taken up, and

4. Manage the discussion of each issue to ensure that:
1. the participants comply with the adopted Rules, and
2. the discussions focus on one issue at a time in the order agreed, and
3. the discussions move along as quickly and courteously as possible, and
4. no one filibusters or repeats arguments.

Sample checklist of Behavioral Rules for Successful Discussions:

1. No raised voices.
2. No profanity, curse words, etc.
3. No threats.
4. No disparaging, insulting, demeaning remarks or accusations.
5. Always speak and act in a courteous and professional manner toward everyone.
6. Let go of the past; let go of blaming; begin the discussions with a new, clean sheet of paper.
7. Really listen to the person who is speaking and don’t interrupt the speaker.
8. Ask questions to make sure that you understand what the speaker is saying and his/her point of view.
9. Whether speaking or listening, try to distinguish facts from beliefs, conclusions, feelings and perceptions that may not be supported by facts.
10. Try to discuss facts that can be independently established as correct or incorrect.
11. Eliminate adverbs and avoid adjectives that send meta-messages.
12. Beware of non-verbal communications: raised voice; intensity; tone; inflection; body language; facial expression.
13. Most important of all, give everyone a full and fair opportunity to be completely heard with respect to all aspects of their concerns, issues, positions, points of view, etc.

If adversaries are willing to discuss their differences courteously and in good faith, in the manner described above, there should be few disputes that could not be resolved without litigation.  

  

 - Beau Brincefield

What is Probate?

Probate is the official proving and recording of a will as the authentic and valid last will and testament of the deceased.  The will should be probated where the decedent (deceased individual) resided at the time of his or her death.  If the decedent passed away in a nursing home or similar institution, then the individual’s residence would be where he or she resided before the nursing home. 

Probate is necessary when the decedent has solely-held assets, which are assets that were not jointly owned or already designated to a beneficiary.  Assets involved in probate include real property and personal property such as bank accounts, cars, stocks and bonds, and personal belongings.  Life insurance and retirement accounts are usually not included in probate because they have named beneficiaries.

            What to bring to the Probate appointment at the Courthouse:

·         The original Will;

·         A certified copy of the death certificate;

·         If the Will is self-proving, you do not need to bring the witnesses to the Will or depositions of the witnesses;

·         The approximate dollar value of the solely owned assets for both personal property (stocks, bonds, bank accounts, automobiles, etc.) and the fair market value of real estate located in Virginia which must pass through probate;

·         The names, ages, and addresses of the heirs at law.  The heirs at law are not necessarily the beneficiaries of the Will.  Heirs at law are determined by kinship to the deceased;

·         Cash or check to pay fees.  Visa and Mastercard are also accepted.  There is a processing fee for each credit card transaction;

·         Valid photo identification.

      Do you need an attorney?  Not necessarily, but you should talk to an attorney about your particular situation.  You may need just a small amount of legal assistance or you may need a significant amount of  legal assistance.  It’s also possible you may be able to handle probate entirely on your own, but by first talking with any of the RRBMDK attorneys that handle will and estate matters, you’ll be able to make an informed decision about your probate legal needs.

Mediation and Custody

Contested custody cases often have a negative impact on the children who are at the heart of the matter.  While parents may have good intentions, the children often get caught in the middle as the parents attempt to work out custody and visitation schedules.

Mediation is often an effective form of resolving custody disputes.  The typical goals in mediation include creating a settlement that is in the best interest of the children, creating a parenting plan that allows both parties significant time with the children, and working toward a more cost-effective resolution—both money-wise and emotionally.

 

There are three types of mediation often utilized in custody matters:  facilitative, evaluative, and transformative.

a. Facilitative mediation.  In facilitative mediation, the mediator does not typically give his own opinions as to potential outcomes if the parties litigate.  The mediator facilitates the process through asking questions, pointing out common interests and points of view, and assisting the parties in analyzing options.  The parties are in control of reaching a resolution.  Typically, the mediator meets for joint sessions with both parties and without attorneys as they want the parties to form their own agreements without the influence of others, including the attorneys. 

b.  Evaluative mediation.  The evaluative mediation process utilizes a mediator who is usually also experienced with the litigation model of resolving custody cases.  The evaluative mediator, who is often a retired judge, helps the parties resolve the custody case by pointing out weaknesses in each party’s case and making predictions as to what a judge may or may not do.  Evaluative mediation is based on the standard set by the law.    Most often, the parties and their attorneys meet together with the mediator.

   

c.  Transformative mediation.  Transformative mediation is the newest of the three mediation forms.  The concept of transformative mediation is based on empowering each of the parties in the decision making process and teaching each party to recognize the needs, interests, values, and points of view of the other party.  The potential for each party to “transform” in his or her relationship with the other party provides an opportunity for the parties to not only resolve the current custody dispute but to hopefully learn a process of dispute resolution they can effect moving forward.  Transformative mediators meet with the parties together.  Transformative mediation is also the form used in the collaborative law process. 

There are pros and cons to each type of mediation.  Feel free to contact one of our attorneys at RRBMDK if you would like additional information on utilizing mediation in custody or divorce cases.