Timely Advice and Proper Planning Can Avoid Legal Problems.
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TIP #1 – THE LEGAL CHECKUP.
Doctors and dentists urge their patients to receive checkups on a regular basis to discover problems before they are out of control, and to better maintain the health of their patients. The same focus on prevention can protect you from legal problems. An occasional legal checkup may be money well spent. Proper planning is usually less costly than obtaining legal services after a crisis has occurred. We consult with our clients on a wide range of matters about their personal affairs. Document review by an attorney before signing can be useful to understand the legal ramifications of the document. Everyone needs a current Will, especially if you have children or substantial property. Options also may be available for tax planning and probate avoidance. Persons who have been injured in a motor vehicle accident will usually benefit from legal advice about how to best present their claim, and in such instances, you can retain your attorney on a contingent fee basis. If someone makes a claim against you, prompt legal advice may also help protect you from liability or reduce your personal exposure.
LEGAL TIP #2 – HAVE YOU PLANNED FOR YOUR RETIREMENT?
Many of our clients are considering their retirements and estate planning. If you are newly retired or contemplate retirement, we encourage you to consult with us about your areas of concern and the best ways to accomplish your objectives. Probate avoidance, Trusts, estate taxes, family needs, charitable giving, transfer on death arrangements, advance medical directives, and business succession concerns are among the issues you may wish to discuss. The basics of estate planning for all persons include a Will, General Durable Power of Attorney, and Advance (Medical) Directive, and these documents can be obtained at an affordable cost. Confer with your accountant and financial advisors as needed, and contact us to get started on your estate plan. Social security information is also available online at ssa.gov
LEGAL TIP #3 – COMMUNICATING WITH YOUR ATTORNEY
When working with your attorney on a legal matter, the opportunity for a good result is improved by following a number of basic steps:
- Pay close attention to any correspondence and documents that you receive from your attorney. Identify any errors or omissions that may require attention.
- Make sure your attorney has all of the relevant information and documents to handle your case. Be truthful and complete in your disclosure of the facts. There should be no surprises for your attorney in preparation and presentation of your case.
- If your attorney has a legal assistant, much communication can go through him/her, regardless of whether your attorney is immediately available when you call. Establish a good relationship with the assistant, and it can pay dividends for you.
- Talk to your attorney about those things that are troubling to you during work on your case. Your attorney will best handle your problems and concerns if he fully understands your perspective on the situation.
- Every attorney’s work involves preparation during times when the client is not present in the law office. He can be more efficient and thorough if you communicate adequately about the problem and objectives.
- Discuss legal fees. Your attorney may prefer to have a signed fee agreement that sets the rates, initiates the representation, and confirms the terms of employment. Make sure that you know and understand the basis for charges relating to work on your case.
- Be a good team member with your attorney. Remember: you are working for a common objective, and both of you want a good outcome. Help your attorney help you whenever possible.
LEGAL TIP #4 – GETTING STARTED ON YOUR ESTATE PLAN An estate plan does not need to be complicated or expensive. Some steps cost little or nothing, such as updating beneficiaries on retirement accounts and life insurance. Other planning will take into account your objectives, the property value in your estate, the number and type of intended beneficiaries, and the need for future management and administration for your affairs. At minimum, you should have a Will drawn by your attorney that specifies the persons you want to inherit from you, designates a personal representative to administer your estate, names a preferred guardian and conservator for minor children, establishes trust provisions if desired, and make other necessary directions for your estate.
Other basic documents would include:
General Durable Power of Attorney naming someone to handle your business affairs when you are unable to do so, and also an Advance Directive that specifies your medical representatives and personal preferences in the event of healthcare decisions, including life or death decisions about artificial feeding and life supports. Organ donation forms, probate avoidance measures such as Transfer On Death directives, and changes in the ownership of your assets may also be appropriate to best achieve your intentions. Trust assets must be owned in the name of the trust. Updating death beneficiaries on life insurance policies and retirement accounts may be important if your circumstances or preferences have changed, and this may also provide an opportunity for charitable giving and tax planning.
LEGAL TIP #5 – AUTOMOBILE COLLISIONS The misfortune of injuries suffered in a vehicle accident can happen to anyone. The injured person should contact an attorney without undue delay to be advised about insurance coverages, proper documentation of claims, and advice on how to best present his/her claim for medical expenses, income losses, pain and suffering, permanent or continuing impairments, and other aspects of the legal damages claims.
Several basic points need to be considered:
- Contact your insurance agent immediately to report the accident and obtain his assistance with filing appropriate claims under your own auto policy. Even if you are not at fault, your own policy will cover related reasonable medical expenses and may cover a portion of income losses if you are unable to work for 14 consecutive days or more.
- Obtain whatever medical care that is needed, and do so in a timely manner. This will help you on the road to recovery and assure that adequate documentation of the injuries is made. Be thorough in your discussion of injuries with the doctor.
- Take pictures of any damage to your vehicle from different angles. Photos of the scene of the accident are also useful. If you have any visible bruises, cuts or marks on your body, promptly take photos of these.
- Keep a journal regarding any daily activities or employment that are disrupted or prevented by the impairment from your injuries.
- Do not give a statement to the other party’s insurance adjuster unless you have an attorney’s advice, participation,and consent to the questioning.
- Make sure you have the names and contact information for all witnesses to the accident. File your accident report with DMV and get a copy of any police report from the department that dispatched the officer to the scene of the accident.
- If you are losing income because of your injuries, gather current pay-stubs, tax returns, work logs, time records, and other evidence of your normal income and lost wages/hours to prove what you would have earned. Also get a doctor’s written disability statement for the insurance company. Provide your attorney with a signed Authorization To Disclose Medical Records for his use in obtaining all such records and any prior medical history, as needed.
LEGAL TIP #6 – DIVORCE SETTLEMENTS AND MEDIATION.
If you contemplate divorce, the services of an experienced family law attorney will be needed to represent your interests. The typical dissolution of marriage case involves resolution of custody, parenting time, child support, spousal support, property division, allocation of debts, valuation of assets, insurance coverages, retirement account division, temporary court orders, and other concerns that might be raised by either of the parties. Divorce law is complex and deals with many different issues, and those persons with children or significant property and income will especially need legal advice to learn their rights, handle document preparation and negotiations, and proceed to trial in court if a settlement cannot be reached. CALL NOW FOR AN APPOINTMENT @ 503-981-0155.
Many divorce cases are concluded by successful settlement negotiations in which the parties have a say in their final outcome and avoid the risks and expense associated with trial. Such negotiations are best handled by attorneys who have the experience to understand your best alternatives. In some instances, mediation can be useful to direct negotiations between the parties. Final settlement documents must be properly drafted to protect your essential interests after the divorce is concluded, and in many instances avoid future disputes or confusion. An improperly drafted final divorce judgment may dissolve the marriage without protecting your rights in important matters.
Attorney fees on divorce cases and other family law matters are billed on hourly rates, and the fee is not contingent upon the outcome of your case. Your attorney will require payment of an initial retainer fee to begin work on the case and cover expenses such as filing and service fees. You may recover reimbursement of part or all of your attorney fees and legal costs from the other party upon conclusion of the case, although courts will frequently require each party to pay their own legal costs and attorney fees. Ask about a Limited Service Agreement on contested cases if your budget for legal fees is a problem.
Kirk Schmidtman has represented clients in dissolution of marriage cases since 1976, and also received training as a divorce mediator in 1993. When serving as a divorce mediator, he remains an impartial facilitator for both parties in settlement negotiations, suggests issues and documentation to be considered, and prepares the divorce judgment and supporting paperwork to file and complete their dissolution of marriage case through the court. The parties are encouraged to have independent legal counsel as needed in their discretion throughout the mediation process.
LEGAL TIP # 7 – HAVE YOU ORGANIZED YOUR IMPORTANT PERSONAL PAPERS AND RECORDS?
Planning your estate also requires organization to make sure that all details have been handled and that important documents and records can be located when needed. Note the following checklist for personal information, legal documents, and financial records as a starting point to putting your affairs in proper order. Make sure that your family and representatives know where to find the documents if you die, become disabled, or need assistance.
- Make a contact list with names and phone numbers of family, close friends, doctor, attorney accountant, financial advisor, insurance agent, clergy, and other important persons.
- Locate your birth certificate, social security card, marriage license, passport, military discharge papers, and other important personal documents to retain in safekeeping.
- List the locations of safe deposit boxes, lock boxes, and home safes, and note any combinations, security codes, entry keys, or other means of access. Box inventory lists also may be helpful. Advise your contact person(s) about where and how to access your records.
- Write down your preferences for funeral and burial arrangements, and prearrange through a funeral home if desired. Note the contact information for the funeral home and retain the contract for services where it can be located. Organ donation, if desired, should be arranged through www.donatelifenw.org.
- See your attorney to make sure that your Will, Trust (if any), General Durable Power of Attorney, and Advance (Medical) Directive documents are up to date and correctly specify your wishes and directions. Keep these original documents in your place of safekeeping.
- Maintain a current list of your income sources, such as Social Security, Individual Retirement Accounts, 401k accounts, pensions, investment accounts, and bonds, and the contact information for each, and retain this information in your place of safekeeping.
- Maintain a current list of your debts and financial obligations, including contact information, account numbers, and other useful information. Include your month to month expenses.
- List your credit cards, account numbers, and contact information for each.
- List your insurance policies (life, annuities, health, homeowner, automobile, umbrella liability, long term care, etc.) and note policy numbers along with the agents’ names and contact information.
- Retain your income tax returns and the contact information for your tax preparer.
- Make an inventory of your real and personal property, including your residence, rental properties, vehicles, investments, and other important assets, and maintain the deeds, titles, contracts, and other legal documents relating to all such property in your place of safekeeping.
- Make a list of your online accounts, including user names, passwords, website addresses, and email addresses.
Careful and organized planning will make it possible for your family and representatives to efficiently administer your estate, which would be a gift to them in and of itself.
LEGAL TIP #8. USING A GENERAL DURABLE POWER OF ATTORNEY.
A General Durable Power of Attorney provides a means for you to give written authorization for your spouse or other trusted person to manage financial matters and property on your behalf during your lifetime in the event that you are injured, ill, absent, or otherwise unable to handle these matters. This document is recommended as one of the basics for most estate plans, and should include specific authorization for a comprehensive list of duties that may be necessary on your behalf. The person you designate as your Power of Attorney/attorney in fact is considered as a fiduciary that will be held to a high legal standard for performance and accountability, and can do anything that you might do regarding your money and property, except as specifically restricted in your appointment. Your attorney in fact should maintain detailed records regarding all work performed and expenditures made on your behalf, and all money transactions should be run through your checking account with appropriate receipts and check register entries. Your attorney in fact is entitled to reasonable compensation as you may determine, and can also hire professional advisors on your behalf (attorneys, accountants, investment advisors, etc.) as needed to be paid from your funds. You are encouraged to update your General Durable Power of Attorney documents every few years to reaffirm present authority, and to provide copies to your bank and other financial advisors for their files.
LEGAL TIP # 9. STIPULATED MODIFICATION OF PARENTING PLANS.
Did you know that Oregon law authorizes modification of your parenting plan (visitation) if both parents submit to the court a notarized stipulation signed by them and requesting such modification order? If either parent wants to relocate, or if other changes of circumstances require revision of the parenting schedule, this can be a convenient and cost effective way for the parties to get court authorization for their new arrangements. We assist our clients with negotiations and document preparation to meet the legal requirements for court approval of a new and enforceable parenting plan schedule. ORS 107.174. Note that the court will charge filing fees for modification of your current judgment.
LEGAL TIP #10. WHAT IS PROBATE?
Probate is the court proceeding by which a decedent’s assets can be transferred to legal heirs or designated will beneficiaries after certain procedures are followed. The personal representative or executor appointed by the court must make sure that the decedent’s debts have been paid and that all assets and debts have been identified and accounted to the probate court before any final distributions can be authorized by the court. Probate is necessary to transfer assets that are owned solely in the name of the decedent at the time of death, but probate avoidance is often possible for those who plan their estates to provide for asset transfers after death through means other than their Will or under the intestate succession laws. Living trusts, pay on death arrangements, and ownership with right of survivorship are among the most common probate avoidance alternatives for those planning their estates. There may be times when probate is advisable to pass clear title to real property or when there are many people entitled to shares of the estate, or perhaps to bring claims on behalf of the estate or resolve issues about the intent of the decedent under the Will, and an attorney can provide advice about the best strategy in these situations. Oregon also has a Small Estate Affidavit procedure that provides an efficient means for estate administration in those estates having less than $200,000 of real property value and less than $75,000 of personal property value, including cash. CALL NOW FOR AN APPOINTMENT @ 503-981-0155.
Engle & Schmidtman attorneys and our experienced probate assistant work with our clients to timely and carefully administer estates through the probate court, and provide counsel on the best procedures available for efficient and cost effective completion of probate and the various probate alternatives. We also handle administration for Wills that are prepared outside our office, as well as those estates with no Will that are controlled by the Oregon intestate succession laws. We work with your accountants, financial advisors, realtors, and other professionals as needed to fulfill all requirements for estates under Oregon law.