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What Fixing a Ticket Really Means

Getting a ticket fixed is more and more common for many reasons. Most are (rightly) worried about the points from a traffic ticket causing their insurance rates to rise. Also, it’s not always guaranteed you can get a ticked fixed, so I always advise fixing the tickets you can. Anyways, while most people are familiar with getting a ticket fixed, they may not know what the actual process entails, and if they have the time, they may actually be able to resolve it themselves.

First, in Missouri there are two types of tickets, a municipal ticket or a state ticket. It’s easy to tell them apart because the state (an  more expensive) ticket will have “FCC” or Fine Collection Center at the top. The rest, including St. Louis County, are municipal tickets. As an attorney, when I have a client with a ticket, I submit to the court (often times online) an entry of appearance. This tells the court I’m representing the client.

In municipalities, the next step is the recommendation. A recommendation is the offer of a plea, where the original moving violation (points on your driver’s record) is reduced to a non-moving violations (no points) generally for an increased fine. This is where the speeding ticket turns into an improper parking violation. In many areas, prosecuting attorneys automatically offer a recommendation after an entry of appearance is filed. But in some, the attorney must write to the prosecuting attorney asking for the recommendation. With state or FCC tickets, after the attorney enters their appearance, the court then sets a court date. The attorney must then go to court and talk to the prosecutor in order to obtain a recommendation.

For most tickets, this is a fairly routine procedure. However, it’s a process that can take months. I’ve even had a simple speeding ticket that took a year to resolve.

I mentioned that a person can often fix a ticket themselves. Depending on the jurisdiction, a person can go to the court on the court date set on the ticket. The prosecutor will then talk to the person and might reduce the moving violation to a non-moving violation. This might take a few hours depending on the night and court, and there is no guarantee that the prosecutor will accept a lesser violation. Often times, having an attorney fix the ticket takes much less time and (while there are no guarantees) an attorney can also give you a better idea of what to expect.

While fixing a ticket, whether yourself or by an attorney, is more expensive than just paying the original ticket, it’s often times worth it. Most moving violations are 2 points and points start affecting your license when you reach 8 points in 18 months. (The Department of Revenue has a great explanation of the full points system here.) Which really means only a few violations can quickly affect your ability and privilege to drive. There are also times when tickets cannot be fixed or points must be added to your license. While no one plans on this happening, I often advise clients to reduce or avoid points when they are able.

Finally, and probably most practically, points on your license can affect your insurance rates. So while fixing a ticket means there are attorney’s fees and higher fines, it often is more cost effective to fix a ticket than pay the higher insurance rates. Especially for a young driver.

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Your Online Estate Plan

Recently, a friend and owner of an IT company (Michelle Herring of CMIT Solutions of St. Charles and Chesterfield), passed along a question she encountered. What do people do about their online accounts when estate planning?

First, I just have to say, I loved that she mentioned this. In a world where more and more of our world is online, it’s a real problem. Even for older families this presents a real issue. Mom now does all of her banking online and doesn’t receive paper billing. How do the kids know what bills are due and what’s already been paid? For those of younger generations constantly on Facebook or even LinkedIn, what happens to those accounts?

Unfortunately, this is the new frontier of estate planning, meaning the laws haven’t caught up with reality. Many (if not all) of the online accounts you use require you to accept a user agreement stating you will be the only person using the account. This means you’re technically violating your agreement with that company if you give another person your password.

Even more of an issue, many online entities have no set policy (and certainly not consistent across companies) of what happens after a user passes: Is a court order required? Can a trust access the account? Does a power of attorney give access?

Few websites truly plan for their user’s eventual (and guaranteed) non-use. There has been discussion that some online entities will or have settings that allow you to give another person access to your account if you don’t log in within a specific amount of time or other forms of estate planning within your online account. After some searching, I could not find these settings in a few of the bigger sites (feel free to share if you do).

So what do you do? There are a few options. Some practical and some not. First and probably the most “legal” (but also probably the least practical) is to keep a list of all your online accounts, so your estate can contact the company and follow the given procedures of that company (if there are any). But really, who has time to create a list and then the hassle of your estate trying to contact and comply with several (plus some) different companies.

Another option is to create a list of all of your accounts and passwords. Either written somewhere or in a document. Hopefully, you can figured out why I don’t recommend this. While it gives your estate access to your accounts, it may inadvertently give access to others as well.

The best solution I’ve seen so far (also recommended to me by CMIT Solutions… seriously, check them out) is to use a password storing cite such as LastPass or KeePass. These applications are secure mobile databases that allow you to store your passwords online on an encrypted site. Essentially, you only have to remember (or share) one password and you have a list of all your online accounts with the passwords. An added feature of LastPass (I installed it over the weekend) is that you don’t have to manually enter the list. As you visit the websites, LastPass will give you the option to save the site and the password.

All of these options have their downfall, but no matter how you plan for your online world, it’s important to consider and plan for as well.

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Still You: What Happens if Your Incapacitated

For those who don’t know me, I read.  A lot.  I’m in two book clubs and average probably a book a week.  Last year I read a wonderful book called “Still Alice” by Lisa Genova.  It’s a book written from the point of view of a woman with early onset Alzheimer’s disease.  It was well written and an interesting story, but it also focuses on something that is all too common, the inability of a loved one to make decisions for themselves.  The book doesn’t touch on the legal complications that can arise with incapacitation, but I, of course, will.

When a person no longer is able to remember where they live, generally, they are not in a position where they can remember their medications, decide if they should be living in their house, or determine if they should take money out of their IRA. This means someone else must make these decisions for them and hopefully make the decisions that person would have made for themselves.  But who makes those choices for them if they’re not capable?

In the best case scenario, they’ve already made arrangements for someone to take over in a power of attorney or have set up a trust. In which case a person they’re decided upon simply begins to act for them with the legal document.  However, many people don’t have these documents.

Without them, a person must go to probate court and file for a guardianship or conservatorship over the incapacitated or disabled person.  Guardianship is the process where a person is given control over the care and custody of another, whereas conservatorship is the process where a person is given control over another’s finances.  In both types of cases, the information needed for filing is extensive, including a full report of the person’s assets/income and an assessment by a doctor.

After filing, an attorney (the guardian ad litem) must be appointed for the disabled/incapacitated person.  This attorney is completely separate from any attorney hired by the family or loved ones to file the legal documents.  What this means is often two attorneys are involved, which of course means two sets of legal fees.

Next, a hearing is schedule where the court will hear evidence on why the incapacitated/disabled person needs a guardian/conservator.  Generally, this occurs a week or two after the petition has been filed.  The judge overseeing the hearing will eventually make the decision on what powers the guardian/conservator will be granted and will only grant that person the powers necessary for the incapacitated/disabled person’s wellbeing.  These powers are issued through the letters of guardianship/conservatorship.

However, that does not end the probate court’s supervision.  After a conservator is appointed, that person must then inventory the disabled person’s assets.  If property must be sold or leased, the conservator must also petition the court before taking action. The conservator/guardian must also file an annual report with the probate court detailing the actions of the guardian/conservator over the year.  For a conservator this includes a detailed accounting of the incapacitated person’s assets.

Without the proper estate planning, an already difficult situation of an incapacitated loved one, becomes a lot more complicated and expensive, including legal proceedings, multiple attorneys, and continuing court supervision.  Essentially, while the disabled/incapacitated person is alive (and perhaps well after depending on their other estate planning) the probate court will be involved.  Hopefully, we never find ourselves or a loved one disabled or incapacitated, but planning for it will make it that much easier if it does happen.

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A New Year: Why Estate Planning is Important

Happy New Year! At the start of the New Year, I always have families coming to me wanting to set up an estate plan. It’s something many people put off and I suppose they use the New Year to make a resolution to get it done. So, for this New Years instead of explaining the process and different legal aspects, I simply wanted to explain why I think estate planning is so important (which I hope you agree with if you’re reading this).

I don’t have a personal horror story of how things went wrong or anything along those lines. But I do have (for another few weeks until 2 more are added) 5 nieces and a nephew. I hope that their parents never need their estate plan. However, because their parents have planned for them, I know it’ll be a little bit less difficult if they do.

The only major loss I’ve experienced was my grandmother and I truly cannot tell you how hard that was for me and my family. When it happened, I helped plan the funereal, clean out her house, and do many of the things that just needed to get done. Things went by very quickly and in a haze. It was already a difficult time and I cannot imagine trying to deal with the court and additional legal matters during that time. Because my grandmother had thoroughly planned, we didn’t have to. She made it that much easier for us.

Unfortunately, death is a certainty of life, and in most situations, that’s a very hard truth. A good estate plan can take away a lot of legal complications that occur when a loved one passes. I encourage everyone to make it that much easier for those left behind by creating an estate plan. Much of an estate plan is for your loved ones.

But there’s a whole other aspect of estate planning that is both for you and your family. The probate court doesn’t just get involved at death, it also has authority over adults who can’t make decisions for themselves. When a person becomes incapacitated they no longer can make legal, financial, or perhaps even medical decisions. If they haven’t planned properly, whomever is taking care of them must go to the probate court to get permission to access accounts, sell houses, etc.

When a loved one is already incapacitated much of their loved ones energy is already spent on that person, having to go to court and sort out bank accounts, cars, homes, etc. is just another obligation requiring time and energy that could be spent in other ways.

Essentially, an estate plan makes a hard time easier. There are still legal issues that must be taken care of when a person passes or cannot make their own decisions, but at time that’s already difficult, a bit easier is very helpful.

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Making a List and Checking It Twice: Your Beneficiaries

Holidays are a great time to catch up with family and because everyone’s around. But it’s also a great time to talk to everyone about what’s important to them. Whether it’s your home or a pillow that’s sat on your couch for the last twenty years. Value means something different to everyone and by talking about those values now, you can avoid heartache and conflict later.

Whether it’s your house or that pillow, you probably want to transfer those important items outside of probate. So to keep in the holiday spirit, I wanted to give you the gift of something practical you can do without an attorney (though I still of course recommend free consultations from the Burkhardt Law Firm to make sure you don’t need more)… The following is a checklist to make sure you have beneficiaries listed or updated and something I would review at least once a year.

Spreadsheet

I included personal property on the list.  However, it’s important to note, a handwritten list alone is not legally enforceable.  So while it does make sense to make a list or at least think about the beneficiaries of personal property, this again is an area to consult an attorney to make sure your wishes will be achieved.

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That’s My Home You’re Taking!

Recently, I’ve sat down with many different types of real estate professionals and many questions come up regarding estate planning and real property. But almost all of my conversations come back to avoiding probate (the theme of my website).  So, for this month, I thought I would continue the conversation about non-probate transfers.  Specifically, I wanted to talk about ways to transfer real estate outside of a will and avoid probate.

Many people take the approach of titling property between themselves and the later intended beneficiary.  I rarely recommend this for several reasons.  First, if there is a significant value increase of the property, the beneficiary will be liable for capital gains taxes on their initial portion when the property is sold.  For example mom buys a house and puts daughter on the deed when she purchases it.  Later the home has increased in value, mother passes and transfers her ½ interest to daughter.  That ½ interest has a “stepped-up basis,” meaning that ½ will not be taken into account for capital gain taxes.  Daughter then goes to sell the home and on the ½ she originally owned she must pay taxes.  If daughter had received the whole property when her mother passed, the whole property would have the stepped-up basis and daughter would not be responsible for capital gain taxes.

Complicated, right?  Well, there’s also a few other reasons, joint-titling is not the best estate plan.  Putting the beneficiary on the deed entitles them to all the rights of ownership.  Want to sell?  Need their signature.  Want to give the property to multiple children?  Need their signature.  You get the idea.  Also, depending on the way the deed is structured (tenants in common versus joint tenants with right of survivorship), the other portion of the property may have to go through probate.  Also, if only one beneficiary is listed and multiple are desired, the listed beneficiary has no legal obligation to share the property.  And if they do choose to share the property, they will have to use their gift exemptions to gift the property. Finally, having another person’s name on the property opens it up to any liabilities they may have.  They go bankrupt, that involves your home.  They get sued, your home might be included in what is owed.

Instead, you can just gift all of the property now, right?  Well, you’re still left with many of the problems.  No stepped-up basis. Control of the real estate by the beneficiary.  No obligation to share the property with other intended beneficiaries.  Liability issues where the whole home could be taken while you’re still using it.

What do you do then?  My preferred method for most families is to put the home in the trust.  Avoids probate along with all the benefits of a trust.  But even if you don’t have a trust, you can avoid probate through a beneficiary deed.  A beneficiary deed simply places the beneficiaries on the property, so upon the owner’s passing, they normally only need to file an affidavit regarding the death.  Compared to probate, a very easy option.

Unfortunately, this is the one area of non-probate transfers where you truly do need an attorney.  The different options for titling and potential wording pitfalls make an attorney desirable.  So, do you have real estate without a non-probate transfer?  Give me a call.

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Are You Consistent?

I’ve written a lot about probate and avoiding probate. For many families a trust is the best way to do this.  However, for simple estates, and even for trusts, non-probate transfers are vital. So, this month I’d like to focus on these measures.  Non-probate transfers simply refer to beneficiary designations on property which therefore do not go through probate. Many people have these and probably aren’t even aware of it.  Do you have a transfer on death (TOD) on your car? Then you are using a non-probate transfer.

While TODs are one of the most common types of non-probate transfers, there many other types as well. The bank version of the TOD is the POD or pay on death. (As a side note, TODs and PODs are sometimes used interchangeably, which is used practically does not matter). There are also beneficiary designations which occur on life insurance policies, retirement plans, security accounts, bonds, and many, many more. Your home can also have a beneficiary. This is done through a beneficiary deed. Almost any asset you have can have a beneficiary.

Now, many trusts use these transfers to transfer the asset upon death to the trust.  But you don’t have a trust so, why do you care? Because they are a major component for anyone trying to avoid probate, trust or no trust.  Thus, if you don’t want your loved ones to have to deal with court, you really want to evaluate the use of these transfers.

Another important consideration of these transfers is that, by definition, your will provisions do not apply. Now, that sometimes causes a problem with inconsistencies. If you updated your will, but haven’t updated your non-probate transfers and want the provisions of your will to control, you have a problem. Therefore, it’s very important you update both places (the will and the transfers) so your wishes occur. In essence, this creates some extra work to make sure everything is correct. But if you aren’t changing beneficiaries often and want to avoid probate, listing a beneficiary or multiple beneficiaries can be a great way to do so.

As a note, if updating beneficiaries on all the different assets you own sounds like a hassle, you might consider a trust.  Under a trust, you changes beneficiaries to the trust, then only need update the trust with future changes.

What this really means for you is that you need to stay on top of your beneficiaries and other non-probate transfers (in addition to the rest of your estate plan). Check them on a yearly basis. If you have a major life event, check everything. I keep a list of my client’s assets (and the beneficiary designations), but you should too! Look at it on a yearly or at least semi-regular basis to make sure it still reflects your wishes.

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Where There’s a Will, There’s a Way… (Sorta)

You know what a will is, right? Right.  Well, at least I’m guessing you do if you’re reading this.  It’s a legal document that says where your assets go when you pass.  But there’s a lot more to it than that. So let’s discuss all a will involves! Fun!

First, I want to address a very common misconception.  Wills go through probate. No discussion, it’s that simple in Missouri.

The next question really is if you need a will then right?  Short answer. Yes.

But of course being a lawyer, the better answer is that it depends.  Do you like Missouri’s intestate laws (where your property goes without a will)?  No, then ABSOLUTELY!   A will (and maybe a pre-nup) is the only effective way to tell the court where you want your assets to go.

Agree with intestate law? Then, you may not need one as much, but you probably still want one for the following reasons.

The most important being your wishes regarding minor children.  Do you have an opinion on whom your children should live with? Make decisions for them? Control their money?  Then you better have a will.  A will is the only document a court will look at for determining guardianship of YOUR kids.  (You can learn more about guardianship here).

A will can also dictate who is in charge of your property throughout the court process.  Don’t want your brother John to handle your assets, but rather your sister Susie? Better get a will and nominate a personal representative.

You’ve heard me say it once, and you’ll hear me say it again. Probate is expensive and time consuming. Having a will can cause the court process to be less expensive and move more quickly.  In a will you can authorize independent administration which allows your personal representative to handle more with your property without court oversight.  You can also allow this personal representative to serve without bond.  This means they don’t have the expense of finding and filing a bond (which can be impossible for those with bad credit).

Using a will in probate can also shorten the time it takes to go through the court by authorizing independent administration.  This allows the personal representative to act without court supervision over many common administrative actions.  In essence, it takes a lot of the burden of court off of the personal representative and might allow things to move more quickly because the personal representative does not need to go to court as often.

So when deciding if you need a will, much of the decision comes down to who your beneficiaries are, how your assets are titled, and how much of a problem a delay in court would cause. Not sure?  Give me a call.

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Hey, That’s Not What I Wanted?!

Ever been to a restaurant where you ordered something, then when it was brought out, found out that what you ordered wasn’t what you thought it was?  That’s similar to how Missouri intestate law works.

Before explaining what the law says, let me define intestate.  Intestate just means without a will.  So, intestate law is what Missouri says happens to your stuff when you die if you don’t have a will or beneficiaries on assets.

Well that’s fine, but that just means it goes to my spouse who will use it to take care of my kids, right? Nope, and unfortunately, it’s not a simple answer.

Really, it all depends on the structure of your family.  Married? Kids? Kids from a prior relationship?  Here’s a quick chart I came up with to help:

Chart

The people who receive your assets under intestate law are called heirs (instead of devisee, beneficiary, or legatee if under a will or trust).

It’s important to note, that this only provides for biological or legal relationships.  Have a step-child who you consider your own? Not adopted? No heir.  Have a friend who you would like to include?  Too bad.  Have a significant other whom you didn’t marry? Out of luck.

So if this chart shows your assets going to a person or people going where you didn’t expect or don’t want… Well, it might be time to talk about a will.

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Who Has the Power?

First of all, happy Fourth of July!  In honor of the holidays and those who have made it possible, especially our troops, I want to focus on power of attorneys.  Now I understand the connection between the armed forces and a power of attorney may not be completely obvious, but let me explain.  When out of the country for any reason, most people want to have their estate planning documents for understandable reasons.  But when you’re going overseas unsure of when you’re going to return and without easy communication, it’s a different story.  You need someone with authority over your bank accounts, insurance, maybe even your house.  This is where the power of attorney comes in.

The person making those decisions is called the agent or attorney and fact and the person actually making the document is sometimes referred to as the principal.   Now, power of attorneys come in many different forms and for many different decisions.

There are two types of power of attorneys that are important for most families’ estate plans: a springing power of attorney and a durable power of attorney.  A springing power of attorney only grants the agent the power to act for the person when a certain event occurs.  Hence the springing.  Generally, this occurs when two doctors certify that the person is unable to make decisions for themselves.  This is how I write the majority of the power of attorneys because most families do not need another person able to make decisions over their money and assets.  It also avoids problems when there are conflicting instructions between a person completely capable of making decisions and their agent.  Now, if you are going out of the country and someone needs to be able to access and make decisions for your account, you do NOT want a springing power of attorney.  However, that’s a more detail analysis an attorney can help you make on an individual basis.

The durable power of attorney allows the agent to act for a person if they are incapacitated or if it is unsure whether they are dead or alive.  Because many people execute these forms to plan in case of incapacitation, it’s extremely important to make sure the document has the “magic” language of a durable power of attorney.  As I said before, I generally help my clients with a springing power of attorney.  But I also include the magic durable power of attorney language.

Most people need a financial/legal power of attorney AND a medical power of attorney.  They do not need to be separate documents, but normally are because some people want different friends/family making financial decisions and medical decisions.  Whether it’s one document or two, it’s important they are reviewed to cover most situations, ranging from banking to insurance to health care choices.  A power of attorney may be drafted for almost any specific decision to give another the power to make that decision.  I’ve reviewed documents to allow one sibling to sell a car for the other 6 siblings (much easier than 7 signatures).

What every power of attorney has in common though it’s no longer effective after death.  Therefore the other estate planning documents (wills, trusts, etc) are extremely important.  Also, without a power of attorney designating someone to make decisions, a person must go through the probate court to have someone appointed to make those decisions.  A power of attorney is much easier and cheaper.

On a final note, people ask me when an estate plan is needed, and while many young people do not have enough assets to truly NEED a will, they certainly have the potential for medical issues and absolutely need a power of attorney no matter the age.  Many clients even choose to execute a power of attorney for their minor children’s health care decisions so a grandmother or other trusted caretaker can act in the event of an emergency where the parent is not available.  A great idea if the parents are extremely inaccessible (out of the country, etc).

So if you don’t have a power of attorney or have any questions, give me a call.  Or at a minimum, take the time to execute a free medical power of attorney from the Missouri Bar (found here).

Burkhardt Law Firm

Phone: (314) 518-1581
Email: mburkhardt@burkhardtlaw.com
Address:
2333 Grissom Dr., Suite 107
St. Louis, MO 63146