​When a loved one has just died it can be difficult to know what needs to be done.  While the largest question may be whether you need to do a formal probate, that question cannot always be answered immediately and often doesn’t need to be answered until about 30 days after death.  While it can provide some useful peace of mind to find an attorney and schedule a free consultation to figure that out, you can schedule that a few weeks out and doing so may give you some necessary time to gather information and take care of more immediate issues.
 
But there are other tasks that you may need to tend to on a more immediate time table after death.  It can be helpful to break down tasks that need to be done into small, manageable pieces.
 
The most pressing matters for the family to address is who will take care of pets or children. If there’s a Will, hopefully an answer is readily clear. If such questions aren’t addressed in a Will, or a Will is hard to find, coming to family decisions around the care of children and pets are a priority.  If whoever is going to take care of the children is not their legal parent and is going to need to make decisions or sign paperwork for school or health care in the immediate future, that may be a reason to open a probate, guardianship, or third party custody action on an expedited matter.  If you are facing that situation, let us or any other law firm you call know you have those issues so they can move you earlier in the queue. 
 
Once the kids and pets are at least temporarily sorted, it’s very easy to be completely enveloped in funeral planning but some other immediate things that are useful to consider are:

• Have someone collect the mail for you.
• Make sure that valuable property is protected, whether that means making sure payments are made to the alarm company for a house, as well as house maintenance like electricity and water bills, and that lights in the house are on timers to make it look lived, any necessary lawn care to keep up appearances, and have the house is checked on.  (If you need to advance money for this, keep good track of what you spend and keep receipts. These monies can usually be paid back from the decedent’s assets once the process to wrap up their affairs is determined.)
• If you are named executor in the will, you may want to check the house for items of value and make sure they are secured somewhere safe. We recommend letting other family members know you are securing the items so no one is upset to not find them in an expected place.
• Cancel unneeded repeat services. if there’s a gym membership, cellphone bill, or cable, or newspaper, or anything else that won’t be used, mail the service providers about the death.

 
Delegating and working together as a family can help make these tasks easier, e.g. if each sibling takes a service provider to cancel the service of.
 
Once these pressing concerns are dealt with and funeral or other ceremonies are complete, it’s a good time to take stock of the Estate to prepare for your initial visit with an attorney. Getting a general idea of assets held by the estate, whether those assets are real estate or financial accounts, and the debts of the estate will provide a basis to determine if you’ll need to conduct a probate. As you make this assessment keep an eye out for a Will. Note how the assets are held and if they have named beneficiaries. Going through mail and any files you find may help shed light onto debts. If there are a lot of debts and you’re worried about dealing with all of the creditors, it may be worth it to have a probate, particularly if the debts outweigh the value of assets in the estate. The executor is never personally liable for debt of an estate they’re probating.  

Don’t panic if you don’t have all the answers before you meet with your attorney but the more information you have, the more you will get out of that first meeting and the more the attorney will be able to determine what process is best for you to do and how to get that started. 
 
Phinney Estate Law offers free ½ hour consultation to all probate clients.  Call to schedule one at (206) 459-1908 or email us at [email protected]. 
 

A probate is the primary legal process necessary to wrap up the legal and financial affairs of someone when they die.  Almost all probates follow the same pattern of 9 basic sections:

1. The probate is opened through a collection of documents: petition, the oath of the petitioner, the Will if there is one, a death certificate, and an order approved by a judge.
2. Official notices are sent to heirs and beneficiaries, either those listed in a Will, and/or those who will inherit by law with the lack of a Will.
3. Official notices are also sent to government agencies like the Washington State Department of Health Services and the IRS.
4. Notice is sent to known creditors and published to inform unknown creditors.
5. An inventory of the estate is made noting the kinds of significant assets present and their value, as well as what debts there are.
6. Any claims from creditors are paid.
7. Any bequests in the form of specific amounts allotted in the will, are distributed.Taxes are paid.
8. The remaining value of the estate is divided among recipients named in the Will, or if there is no will, divided among the family who inherit under the law.
9. The probate is closed.

 
Most probates last between five and twelve months.  Probates that last longer than six months usually so do because there is real estate that is taking a long time to prepare for market and sell or because we are waiting on information to file the final tax returns. 
 
At Phinney Estate Law we work with clients through every step of this process.  Usually clients never need to go to court and most of the work can be done by phone, mail, or email.  We offer all potential clients a free ½ hour consultation to help them determine if a probate is necessary and talk in some detail about what that process might look like for their case.  Some clients choose to do a lot of the work for steps 4 to 9 fairly independently, only looking to us to help when they have questions or needs forms.  This can give the client a high level of control and also save on legal costs.  Others prefer to have us do the bulk of the work because they are busy, emotionally overwhelmed, or simply hate this kind of paperwork.  We are happy to work with clients in whatever way is best for them while still making sure they get the legal help they need to avoid errors that could get them into trouble down the road.

When someone you love has  just died, figuring out what you need to do to wrap up their financial affairs can be daunting to consider. One of the first questions may people ask is “Do I need to do a probate?”  Probate is one of the main ways to handle property after a person’s death.  Many people are scared of probate, having heard horror stories from family and friends.  But in Washington probate is not as complex or expensive as it is in many states and with the right help can usually be completed relatively quickly and without huge cost.  But probate also isn’t always needed.
 
In Washington State,  if someone leaves behind more than $100,000 in assets when they die and those assets do not already named beneficiaries through jointly held accounts, Transfer-on-Death, or Payable-On-Death structuring, then you’ll likely need a probate. Also, If the estate contains real estate it will likely need to go through probate, unless the property was held titled as “Joint Ownership with Right of Survivorship” or as community property with right of survivorship. Even if the Estate is small in value and doesn’t contain real estate, it may be beneifical to do a probate anyways.  For example, if someone had a lot of debts and it seems it would be overwhelming to deal with them all, court oversight and the official timelines provided by a probate, may be useful and that would be another reason to conduct a probate of the estate. Also, if the individual was already involved in any legal disputes or if someone else is responsible for their death, probate may be the only way to resolve those issues. 
 
Knowing the legal impact of how assets are titled and/or whether pending issues make probate necessary can be difficult to determine.  At Phinney Estate Law we recommend that everyone facing a death get legal advice to help them determine whether they need to do a probate before acting on any assumptions they may have. We offer a free ½ hour consultation for potential probate clients at Phinney Estate Law and can often provide that advice within that time. 
 
To maximize the benefits of that consultation we recommend that clients come to that meeting with the following: 

• copies of any wills, trusts, or community property agreements the deceased person created during their life
• copies of any deeds, bank statements, investment statements
• car titles you can find
• notes about any debts or other assets you know they have and unfinished business going on in their lives at their time of death. 

We recommend that you call any institutions or banks where the deceased person had accounts and ask them to tell you how those accounts were titled and if they had beneficiaries.  Often they may not be able to answer your questions, if you have not yet opened a probate and that is okay.  But knowing and much as you can, including what they won’t tell you without your opening a probate can very helpful.  We recommend you write all the information you learn down word for word and bring it with you as grief can play tricks on your memory especially if you are feeling stressed.
 
Even if probate is not necessary, you may need to do legal process, such as a small affidavit process, a trust administration, or a beneficiary claim.  A consultation can help you determine that as well. 

Regardless of what process you end up needing to complete, anyone who has a deceased person’s will has 40 days in which to file it with the court.  You don’t need to open up a probate that quickly but if you are going to do so, it makes sense to do that at the same time.  That is also generally a good deadline to set for yourself for figuring out what process you are going to go through and staring it.  To make that work you should plan on trying to set up a consultation within 30 days of the person’s death if possible.

To learn more about Probates read the next post in this series.

We don't normally report on cases outside of Washington State but the decision out of New York in Windsor v. United States has such important long term implications for our same sex couple clients, we had to make sure they got the news.

On June 6, 2012, in Windsor v. United States, U.S. District Judge Barbara Jones in the Southern District of New York granted summary judgment to Edith Windsor and created a precedent that is likely to positively affect same-sex married couples for years to come. Edith was awarded $353,053, plus interests and costs for the federal estate tax that she was wrongfully required to pay upon the death of her beloved wife.

Edith met her late spouse, Thea, nearly 50 years ago in New York City. Even though no state in the United States afforded legal recognition to same-sex couples, in 1967, Thea proposed to Edith. In 1977, Thea was diagnosed with multiple sclerosis, which gradually debilitated her over the years and made her a quadriplegic. After being engaged for 40 years, in 2007, Thea and Edith decided to legally marry in Canada since same-sex couples were still not permitted to marry under New York law. Their marriage in Canada was recognized in New York because New York affords legal recognition to civil marriages that are lawful in the jurisdiction where they are performed. See Matter of the Estate of Ranftle, No. 4585-2008 (N.Y. Sur. Ct. Jan. 26, 2009). On February 5, 2009, Thea lost the fight against her health battles and passed away, leaving her entire estate to Edith. In June 2011, New York became the sixth state to allow same-sex couples to marry.

While Thea's estate slightly exceeded the applicable federal exclusion amount set forth in 26 U.S.C. 2010(c), under 26 U.S.C. § 2056(a), a decedent's estate is generally entitled to an unlimited marital deduction for the value of any property that passes from the decedent to his or her surviving spouse. Whether a couple is married for purposes of the estate-tax marital deduction hinges on whether the couple is considered validly married under the law of the state. See Eccles v. Comm'r, 19 T.C. 1049, 1051, 1053-54 (1953).

While on its face, the estate-tax marital deduction applies to all legally married couples, same-sex couples have been denied these benefits due to the plain language of the Defense of Marriage Act (DOMA). Section 7 of DOMA provides:

"[i]n determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or wife." 1 U.S.C. § 7." Due to DOMA, the Internal Revenue Service excluded same-sex spouses from the benefits of the estate-tax marital deduction. This consequently caused Thea's estate to owe $363,053 in federal estate tax, which is an amount that the estate would not have had to pay if she married a male.

In 2010, Edith challenged the federal government's refusal to recognize her marriage—that was deemed valid under New York law—for federal estate-tax purposes, and she won. In February 2011, President Obama's administration came to the conclusion that Section 3 of DOMA, which bars the federal government from recognizing the legal marriages of same-sex couples, is unconstitutional and decided that the U.S. Department of Justice would no longer defend such discrimination in court. The Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG) intervened to defend the constitutionality of DOMA and argued that DOMA provides a federal definition of marriage and it is what is "universally accepted in American law." Windsor v. United States, 1:10-cv-08435 BSJ-JCF, p. 18. Judge Jones of the Southern District of New York disagreed with BLAG and held that DOMA's definition of marriage does not pass constitutional muster and is unconstitutional as applied to Edith. As a result of this groundbreaking case, couples living in states that license or respect same-sex marriages are now entitled to equal treatment for federal estate-tax purposes. This case also suggests that executors of estates involving a same-sex surviving spouse may be entitled to a refund of federal estate taxes that they may have been wrongfully required to paid.

Washington's Estate tax, which applies to many more couples in Washington because it has a personal exemption of $2 million, already grants the unlimited exemption to registered domestic partners.  This case, if upheld by Supreme Court could extend that same equality to the federal level. 

If you are in a same sex relationship and would more information on issues that might affect your estate plan, contact us for a free 1/2 hour consultation at [email protected] or (206) 459-1908.

On May 8, 2012 the Washington State Court of Appeals, Division II issued a new published opinion, Witt v. Estate of Young, which held that claims for quasi-community property by partners of the deceased who were in intimate and committed relationship are not subject to the creditor claims time limits and can be brought, most properly as a challenge to the inventory anytime until the probate is closed. 

In the Witt case, the deceased's long time partner filed a creditor's claim in her late partner's probate holding that all the property was quasi-community property and therefore should go to her.  The Personal Representative of the Estate denied the claim with a notice that any challenge to the denial must be made in 30 days.  More than 30 days late, Witt filed a complaint against the Estate in Superior Court for Partition of real and personal property.  The Estate moved for Summary Judgment to have the complaint dismissed on the basis that she had missed the thirty day window for making a challenge to the denial of her creditors' claim. The trial court declined to dismiss the action and the Estate appealed.

The Court of Appeals made on factual determination of whether the property in question would be covered by the quasi-community property rules that allow a court to treat property earned by either party during an intimate and committed relationship as analogous to community property earned during a marriage.  It left that question to the trial court.  But it did find that such a claim is really a challenge to the inventory of the Estate and not a claim for debt owed by the decedent and so isn't a creditor's claim and isn't subject to the creditor's claim time limits.  The court acknowledged that Witt had initially brought a creditors claim but found that her having done so did not preclude from bringing a more proper claim at a later date.  The court also went out of its way to make it clear that such a claim would need to be brought before the probate was closed or it would be barred.

The case provides some helpful guidance to both non-married partners who fail to do proper estate plans and personal representatives of their partner's estates about how these claims should be brought and the timelines that govern them.  This was important because while the court has been consistent and often generous in awarding these claims on an equitable basis they have come before the court in a variety of manners leaving practitioner frequently perplexed about how to properly introduce such a claim and proper way to accept or reject such claims.   As a practical matter, by channeling these claims in to the TEDRA process for challenging inventories the court has also created more generous timelines and enhanced incentives for resolving these disputes through alternative dispute resolution presumably with the hope of having more of these heavily fact intensive cases settled by the parties rather than litigated through the courts.  It is also an important reminder to personal representative who are administering estates were such a claim is possible not to let estates linger open longer than necessary as it will increase the time that these challenges can be brought and to be very careful about making any preliminary distributions before closing the estate where any possible claim could be made by an unmarried partner. 

Perhaps its best warning is that couples who are in long term, committed relationships are really best served and best taken care by careful planning before death, ideally including powers of attorney, co-habitation agreements, and wills that spell out what the plan is with regard to the creation of quasi-community property, who should be in charge of crucial life choices, and where assets should flow at death.

If you have lost a partner and want to better understand your possible rights to quasi-community property, or managing an estate that might be subject to such a claim, or are in an non-married committed relationship and want to plan to avoid this kind of potentially ugly and expensive mess at your death, please contact us to schedule a free half hour consultation at [email protected] or (206)459-1908.