PJI Law

What Happens if I Die or Get Incapacitated Tomorrow, with No Plan in Place?

What’s the most popular estate planning option? Will-based planning? Trust-based planning? Unfortunately, it’s neither. Number one on the list in Virginia is: doing nothing. The more technical term for this lack of planning is called “dying intestate.”

“Dying intestate” simply means that you have decided to depart this world without doing any estate planning whatsoever. While your family will be horrified at this prospect, your unintended beneficiaries, the government and the probate court will all be delighted.

By dying intestate, you will have allowed the government to draft your estate plan for you. As a result, they can tax your estate and impose other costs at the maximum amount allowable by law. In addition, your assets will go to people according state law’s priorities, not your own. For example, most married couples want their share of the estate to be used by the surviving spouse before the children inherit. However, if you have a blended family situation and provided no direction ahead of time, when you die, the court will only give one-third of your estate to your surviving spouse and two-thirds to your children from a previous marriage.

This problem is exacerbated before you die if you have no incapacity planning documents in place. If (and more likely, when) something happens to you that renders you unable to handle your own affairs, without you having a proper legal plan in place, you will have to go through a legal proceeding where a court appoints a guardian to handle your personal affairs and a conservator to handle your finances. The procedure is oftentimes referred to as “living probate.”

Living probate can be a living nightmare for you and your family for several reasons. First, it can be a humiliating process. You are declared incompetent in a public proceeding. Next, the court is in charge. It will decide which people will manage your affairs; it’s neither you nor your family’s choice.

Because of this court proceeding, there is lag time in the management of your affairs due to paperwork and delays. Of course, these hassles can add a lot of stress and expense to what is already a very stressful situation for your family.

Finally, living probate can be very expensive. Typically, there are court fees, attorneys’ fees, expert witness fees and accounting fees. Additionally, once your conservator has been appointed by the court, this person has to give an annual accounting to the court on how your financial affairs have been managed. This is true even if the court appointed your spouse or one of your children as your conservator.

Doing nothing hurts you, but hurts your family even more. Most of our clients tells us that the reason they’re doing proper planning is to protect their family. If that sounds like what you wish to do, we at PJI Law are here to help. Call us at (703) 865-6100 or email us at family@pjilaw.com.

3 Reasons Why Adding Your Children as Co-Owners on Your Financial Accounts Is an Awful Idea

It has become common practice in Virginia for a surviving parent, after their spouse has passed away, to name one of their children as a co-owner of some or all of their financial accounts. There are a few reasons parents do this, but oftentimes it is to make sure that the child can access the parent’s account for the parent’s benefit if the parent becomes mentally or physically incapacitated. It is sometimes perceived as a shortcut to creating a proper estate plan with a portfolio of legal documents drafted by an attorney.

However, adding a child as a joint owner of your financial accounts is fraught with peril. Here are three of the main reasons:

  1. By adding your child as a joint owner, you are exposing your financial accounts to your child’s creditors. If your child ever goes through financial hardship (perhaps even due to a tragic accident), their creditors may try to collect by garnishing your child’s financial accounts, including ones where you established your child as a joint owner.
  2. Second, you are exposing your finances to your child’s control before you need to cede control. You hope that your child will continue to act in your best interests once you add them as a joint owner to your accounts. Most children will. But some do not, sometimes due to pressure from a spouse. And when they do not, you cannot simply remove the child from your accounts. You must have the child’s written permission to have them removed as a co-owner. Or you can close the account and withdraw all of the funds; of course, you have given your wayward child the ability to do the same thing.
  3. Finally, you may unintentionally disinherit your other children. For example, you have three children, two of whom live in another state, and one lives locally. It is not rare in such a case for a parent to add the child who lives locally as the joint owner on the financial accounts. However, if that is done, joint accounts usually have a survivorship clause in the contract. Which means when the one co-owner dies, the account is now solely the property of the surviving co-owner. Which means the local child inherits all of your financial assets at your death while your other children receive nothing.

There are more problems, of course, but no need to pile on.

So, what do you do? How do you properly allow a child to help you with your finances without adding the child as a co-owner on your accounts? One method is to make your child an “authorized signer” on your financial accounts. That way, the child can sign checks and engage in transactions on your behalf while exposing your finances to only some, but not all, of the perils of co-ownership.

A far stronger solution is that you can, as part of your estate plan, name a child your financial agent in a General Durable Power of Attorney document. Under such a document, your child has the power to engage in financial transactions of your behalf, but they are not considered a co-owner of the accounts. The child has obligations to meet under the law to act in your best interests as your agent and you can revoke the Power of Attorney documents at any time, unless you lack mental capacity.

There are additional aspects of an estate plan that can even make it easier on your child to help you, while simultaneously protect you and your family even more. If you would like more information, please call our team at PJI law at (703) 865-6100, or email us at poa@pjilaw.com.

 

Should I Consent to Judgment in Court?

Sit in the courtroom during any lengthy Virginia General District Court civil return docket, in Fairfax or elsewhere in Virginia, and you will likely see the following scenario play out: a pro se (meaning “unrepresented”) defendant will approach the front of the courtroom, whether in response to a lawsuit filed by a credit card company, homeowners association, medical provider, or any other type creditor, and the judge will ask the nature of the Plaintiff’s claim and the amount of damages alleged—sometimes thousands of dollars and sometimes hundreds. The judge will then ask the defendant whether or not he or she agrees with the claim, and the individual either responds affirmatively or acknowledges owing the money but attempts to explain that they have unsuccessfully tried to resolve the matter outside of court, or that the debt constitutes a hardship.

Occasionally a judge will ask or prompt the creditor’s attorney to speak with the defendant in the hallway to see if the matter can be resolved, but most of the time the court will proceed to enter “judgment by consent” and then encourage or instruct the defendant to follow up with the attorney to make arrangements to pay off the judgment. The entry of the judgment alone will almost always end up on a defendant’s credit report, and many judgments are taken when both sides would have benefited from making arrangements to satisfy the debt and thereby avoiding the entry of judgment.

Many creditors might assume that getting the quickest and easiest judgment always leads to the optimal recovery of the debt, but often times the threat of judgment is a more effective tool than the judgment itself in causing a debtor to pay the debt or entering into a satisfactory settlement or payment agreement. Collection and enforcement of a judgment can be frustrating and time consuming, and a voluntarily agreement or resolution is almost always the most effective path towards recovery of the debt. When judgments are obtained quickly either by default or by consent, it frequently signals that the debtor might not have many assets or revenue sources to protect.

Any defendant can answer the judge’s questions at the return date in a manner that will effectively constitute a sufficient denial of the claim that will result in a trial being set. This trial date is usually months down the road, and if nothing else, this provides the defendant with time to make payments or time to try and work out a settlement agreement or payment plan to resolve the debt. For creditors and their counsel, the pending trial date and continuing threat of judgment provides great incentive for the defendant to resolve the debt, if possible.

We at PJI Law can provide advice and assistance to both creditors and debtors, both prior to litigation, during litigation and during the post-judgment collection period. Contact our office today at (703) 865-6100 to schedule an in-person or remote appointment.

What Can Virginia Landlords Do About Tenants Who Are Behind on Rent in the Age of COVID-19?

Whereas commercial landlords can often utilize “self-help” and evict a non-paying tenant by changing the locks or, in some instances, shutting off utilities, landlords with residential tenants must use the court system by filing a Summons for Unlawful Detainer in order to evict a tenant.

Beginning March 16, 2020, all judicial evictions were frozen due to the judicial state of emergency declared by the Supreme Court of Virginia. Since then, there have been all kinds of changes that can be immensely confusing for those who, unlike landlord-tenant attorneys, don’t have it as part of their job descriptions to keep tabs on legislative and judicial updates.

A freeze on evictions would inconvenience and frustrate landlords during ordinary times, but a freeze on evictions during a period when many tenants are suffering financially and missing rent payments can cripple a landlord still facing monthly mortgage bills. Certainly both landlords and tenants are facing and dealing with unique hardships during the pandemic. If possible, both parties should explore and consider every possible way to resolve difficulties and avoid evictions. However, a resolution is not always possible; so what remedies do landlords during the eviction freeze?

If negotiations fail, the best thing a landlord can do is to have their unlawful detainer proceeding filed with the court now and scheduled on the soonest date permitted by the court. General District Courts have been accepting unlawful detainer filings since March 16th, and these matters have been piling up in the clerk’s office. For example, in one standard-sized General District Court in Virginia, nearly 200 unlawful detainer lawsuits were filed in the seven weeks following March 16th.

Many of the landlords with pending matters have had their initial return dates continued by the court, or have had to select new dates, due to extensions of the judicial emergency. A law firm familiar with the peculiarities of your local court would be well positioned to strategize with you about how to improve chances of getting to the “front of the line”.

PJI law has represented landlords in Fairfax County, Loudoun County, Prince William County, Arlington County, the City of Alexandria and other Northern Virginia jurisdictions in matters ranging from unpaid rent, to evictions, to property damage, to fraudulent representation. If you need advice on the best course of action or need assistance in getting your matter through court efficiently in light of the long queue that has built up, please schedule a consultation either in person, on the phone, or by video to discuss your matter. You can reach us at (703) 865-6100 or at landlords@pjilaw.com.

Super Lawyers Names Paul J. Abraham a 2019 Rising Star

PJI Law is pleased to announce that for the fourth year in a row, its Managing Attorney Paul J. Abraham has been selected by Super Lawyers to its Rising Stars List!

The selection, according to Super Lawyers, stems from Mr. Abraham having “attained a high degree of peer recognition and professional achievement.”

“This award is due entirely to our excellent team and to our team approach,” Mr. Abraham noted. “Every one of our clients and their cases get the benefit of being attended to by everyone from our Managing Attorney, to a committed Associate Attorney, paralegal, legal assistant, and of course to our Client Liaison. This exposure to so many members of our PJI Law family is what allows our team to deeply understand and work together effectively on our client matters, and it is a large part of the reason we have so many happy clients.”

The recognition is the result of a rigorous selection process by the nationally known and respected organization, which includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area.

Is In-Home Separation Possible in Virginia?

When you think of a married couple being “separated”, you probably envision one spouse moving out of the marital home. While that is the most straightforward way to separate, Virginia courts do recognize in-home separation as well. In-home separation occurs when the couple is still living in the same home, but each person is conducting his or her life as though they weren’t living together.

This is helpful to people because in most cases, and depending on the specific circumstances, Virginia requires a couple to be separated for one year or six months before they can file for divorce. Virginia requires a separation, or waiting period, in hopes that the couple will have enough time to work things out or, hopefully, reunite during that time. Waiting that long, however, can be difficult financially and sometimes even logistically. Therefore, many people elect to continue to live in the same home – but separately – so that they can avoid the expenses of maintaining two homes.

In-home separation doesn’t come without awkward moments and other difficulties.                                    

The question then becomes, how does the court know that the couple is separated if they are still living in the same house? While there is no formula, here is a checklist of some of the main facts the court would look at:

  • Using separate bedrooms.
  • Not engaging in marital relations.
  • Not running errands for the other spouse (grocery shopping, dry cleaning, etc.).
  • Not preparing food for the other spouse.
  • Not sharing meals together (unless it is a holiday or event pertaining to the children).
  • Not sharing chores (each spouse should be responsible for his or her own portion of the living space).
  • Not doing laundry for the other spouse.
  • Establishing separate checking accounts.
  • Not socializing together (not going on dates together, not going to family reunions, social gatherings, or work events together).
  • Not celebrating or exchanging gifts for special occasions.
  • Letting other people know that you are separated.
  • Having other people over to the house and making it clear that you are separated.
  • No longer wearing wedding bands.
  • No longer playing the role of the happy couple.
  • At least one person deciding that the separation is permanent (not trying to work things out, not going to couples therapy, etc.).
  • Note: If a couple has children (even if they are not minors), they are both still going to be parents regardless of whether they are separated. It is perfectly acceptable to continue to do things for the children such as attending sports events, concerts, and other special events for the children.

Again, there is no black and white rule, but all of these factors can add up to show either that the couple has been living separately or that they have not been.  In order to ensure that couples are not saying that they were separated before they truly were, the courts require a third party witness to confirm that they know the couple and know for a fact that the couple was separated for the necessary period of time.

We at PJI Law have guided a large number of Virginians through a divorce when the couple was separated within the same home. Sometimes, the separation may not have been as “clean” as one would have wanted, but our experienced attorneys have seen countless such situations and are ready to advise on how to deal with them, and on helping our client achieve their goals.

Remember Your Loved Ones (of All Species!) in Your Estate Planning

When thinking about estate planning, most of us think about our loved ones. Who will take care of my children? Who will inherit my estate? How will my spouse manage to pay the bills? However, a beloved household member is often overlooked . . . the pet!

While Virginia still classifies pets as property, their owners often treat them as members of the family. As such, responsible pet owners need to have a contingency plan in place for their pets in case something happens to the owners. If you leave your planning to chance, your pet’s future is uncertain. If something happens to you, your pet will be left relying on your friends or family to step up and care for them. If no one has the desire, time, space, or resources, your pet may end up at the mercy of a shelter or adoption agency.

You may believe you’ve addressed this issue via a verbal agreement with someone you trust. You may have a friend or family member who is pet-friendly and has told you they are willing to care for your pet. Unfortunately, that verbal agreement does not come with any guarantees that the person will (or, more often, can) follow through when circumstances change and times get tough, not to mention the potential disputes and competing claims over your pet that may arise among your family, friends, and acquaintances.

Good planning ensures your pet is properly provided for.

A far better course of action is to provide for your pet in your Last Will and Testament. This can be as customized as your needs require. You may simply direct whom you want to take care of your pet, you can set aside money for that person to use in caring for your pet, or you can even establish a pet trust.

A trust may cost slightly more to establish than a provision within your Last Will and Testament, but that is the safest way to ensure that your last wishes will be followed with respect to your pet. With a trust, you can not only leave your pet to someone’s care, but you can also leave funds to be specifically used for your pet and outline the conditions for use.

In addition to these formal steps for ensuring the care of your pet, it is also necessary to prepare the person you choose to care for your pet. Make sure the person knows where to find important information like medical records, and organize those records so that the person can easily identify allergies, medical conditions, and medication. Have the person and your pet spend time together and get to know each other. It would be helpful for the person to have information about your pet’s groomer, sitter, routine, and favorite things. These steps will make the adjustment period much easier for everyone involved.

Responsible pet owners must think about all of their loved ones, including their pets, and plan for the unexpected. Our PJI Law family has many pets, and being very much in the same boat as you are, we care about you and the ones you love, regardless of their species. Contact us if you would like to discuss options for your estate plans and the plans for your loved ones.

Check Out These Newly Enacted Virginia Laws

We’re not passive about the practice of law here at PJI Law – we pride ourselves on keeping up with the latest changes in the law in order to gain as big of an advantage as possible in our clients’ cases.

Newly enacted Virginia statutes typically go into effect on July 1 of each year, which means it’s now time to look at some of the newest and, in some cases, most interesting, laws that have gone into effect as recently as a last week:

Family Law

1. For the purposes of petitioning the court for a modification of spousal support, the payor spouse’s reaching full retirement age (per the Social Security Act) must be considered a material change in circumstances.

2. Virginia has developed a Kinship Guardianship Assistance Program to facilitate child placements with relatives if it is not appropriate for the child to return home or be adopted. The law also allows financial payment to the relative acting as the guardian of the child.

Business Law

3. The board of directors of a nonstock corporation is now authorized to determine that a meeting of members be held via remote communication, assuming the articles of incorporation or bylaws don’t have contradictory requirements.

4. A new law removes the requirement that a corporation authorized to issue one or more classes of shares list the number of shares of each class on its corporate annual report.

5. Landlords may now accept full or partial payment of rent during a court action for possession and still receive an order of possession if the landlord states in the written notice to the tenant that any payment of rent, damages, money judgment, award of attorney fees, and court costs would be accepted with reservation and not constitute a waiver of the landlord’s right to evict the tenant from the dwelling unit.

Miscellaneous

6. Everyone with pets knows that there can be liability if the pet bites someone. If there is a history of biting, the repercussions could be even worse. A new law in Virginia requires that previous bites must be disclosed upon the release of a dog or cat for adoption.

7. Virginia is lifting the prohibition on hunting or killing raccoons after 2:00 a.m. on Sundays.

8. Health care practitioners employed by the Department of Health may now prescribe antibiotics to the sexual partner of a patient diagnosed with a sexually transmitted disease without physically examining the partner.

9. Effective July 1, 2020, 911 is required to be able to receive and process calls for emergency assistance via text message.

If you have questions on how these or other Virginia laws may impact you, we stand ready to assist you.

How Does the New Tax Law Affect Spousal Support in Virginia?

Many people are concerned about how the new federal tax law is going to impact their taxes. What some people do not yet realize is that the tax law is also going to have a drastic impact on spousal support numbers in divorces.

Currently, the individual paying spousal support is able to claim the payments as a deduction on their taxes. The individual receiving support is then obligated to declare the support as income. (As always with taxes though, there are exceptions).

The new tax law states that, for orders entered starting January 1, 2019, the paying individual will no longer able to claim the deduction, and the receiving individual will no longer be required to pay taxes on spouse support received.

With that said, if you modify an agreement or divorce decree that was entered under the old law, you are still governed by the old law allowing for deductions and income unless both you and your ex opt-in to the new law. That means that the applicability of the tax law is yet another negotiation point when the time comes for modification. The paying spouse will want to maintain the support under the current regulations, while the receiving spouse will likely want to opt-in to the new laws.

The new tax law will make the date of entry of divorce and spousal support orders very significant around the end of  the year 2018.                                                                               

The new tax law is not retroactive. Therefore, if you have a divorce decree or settlement agreement that is executed on or before December 31, 2018, the new law does not apply to you (for now). As many people know, however, it is not uncommon for circumstances to change and depending on the settlement or court decision, support may be later modified.

Aside from the above implications, spousal support determination in Virginia remains unaffected. See our post on the subject to better understand generally who gets spousal support, for how long, and how much.

People often ask if the new laws will change child support as well. Interestingly, the current tax laws relating to child support mirror the new spousal support laws in that paid support is not deductible and received support is not treated as income. So, the short answer is no, there is no change to child support. The long answer is that spousal support is a factor used to determine child support. Therefore, there may be additional negotiations and factors to consider when determining child and spousal support starting January 1, 2019.

Regardless of whether you are paying or receiving support, it is clear that there are significant changes ahead. Many of the practical aspects of the change will have to be ironed out. It is important to have legal guidance to navigate these waters. At PJI Law, we are dedicated to staying abreast of the new changes in the law and helping our clients address those changes head on. If you would like to schedule a meeting to discuss, we would be happy to review your situation and go over your options with you.

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