Domestic Violence Resources in Orange County

            By government statistics, 1 in 4 women and 1 in 7 men in the U.S. will, sometime in their lifetime, suffer physical violence at the hands of an intimate partner. 

            Orange County is a leader in addressing domestic violence.  Under Sheriff Pendergrass, Orange County became the first county in the state (and still one of a few) to have a special unit to assist domestic violence victims.  Social workers within the Department make victims more informed so they can make better decisions; they also focus on the practical needs of the families involved.  Their office serves over 1100 people annually. Yearly training for deputies includes updates on domestic violence issues.  Officers must know how to handle these potentially explosive situations.  In addition to arresting offenders, responding officers can help victims with transport to medical care or shelter, and with securing basic items needed for themselves or their children if they wish to leave the home. 

            Legal tools to address domestic violence include civil 50B orders (also known as DVPOs, which stands for Domestic Violence Prevention Order) and criminal charges.  About 75% of the time, when a DVPO is entered, there are also criminal charges (most commonly assault or communicating threats).

            A DVPO can be obtained when the defendant has caused or attempted to cause bodily injury, or places the plaintiff (or plaintiff’s family/household member) in fear of immediate serious bodily injury or subjects her/them to continued harassment.  In this instance, “continued harassment” means something serious that is beyond annoyance, such as stalking.  DVPOs are available against a spouse, former spouse, current or former dating partner of the opposite sex, member of the opposite sex with whom the victim lives or lived, or a person with whom there is a child in common. 

            The process usually starts with an emergency ex parte order, signed by a judge based on the plaintiff’s written application, followed by a hearing within 10 days.  Defendants should understand that, just because a judge has signed an emergency 50B based on the plaintiff’s paperwork, it does not mean he/she has prejudged the case.  After presentation of the evidence at the 10-day hearing, a judge may continue the order in effect, modify it, or dismiss it entirely.  Judges do not look favorably on anyone who misuses the 50B process to gain an advantage in an ordinary custody or property division case when there is no real fear of violence.

A 50B Order requires the defendant to stay away from the plaintiff (and sometimes the children, depending on whether their safety or well-being is at risk), not to communicate with the plaintiff (and sometimes the children) except as the Order allows, not to threaten the plaintiff directly or through other persons, and to surrender firearms.  Depending on the case, the DVPO can also grant temporary possession of the residence and/or a vehicle, award temporary child custody and/or support, order the defendant to stay away from the children’s school, and provide for the safety of pets. 

DVPOs last for one year.  They can be renewed for an additional year, but custody provisions cannot be renewed.  So, if you have a 50B Order entered with custody provisions, you should plan to do something else to secure custody rights before that first year ends.

A 50B Order is not a bulletproof vest and is not the best solution for everyone.  The Sheriff’s Office social workers can help sort out these issues.  For example, severe mental illness may make an offender unwilling or unable to obey an order, and getting served with one may just push him or her over the edge.  In other cases, a 50B Order or criminal charges may jeopardize the defendant’s job, which could cause a loss of income and benefits for the entire family.

As of writing this article in 2013, Orange County does not have a domestic violence shelter.  Compass Center in Chapel Hill assists domestic violence victims with emergency shelter at hotels or in shelters in nearby counties.  Visitation supervision may be needed to let the defendant see his or her children safely, but Orange County also does not have a supervised visitation center.  The Family Visitation Center in Pittsboro is the closest one, but suitable friends or family members may enable the defendant to keep up his or her relationship with the children in a safe setting.

Resources to help with domestic violence include Orange County Sheriff’s Department (919-644-3050, or 911 anytime) and Compass Center’s 24 hour hotline (919-929-7122).  Many thanks to the Orange County Sheriff’s Office for their assistance with this article.

Ask The Lawyer: Don’t Let Facebook Sink Your Case

More often than you might think, I’ve seen someone do serious damage to their legal case thanks to Facebook, Twitter, or other online posts.  Many people think of their social media lives as a vital part of their real lives.  They post like they always have, without thinking about the harm they do to their legal case.  Problems are most common in injury cases and in family law cases.  Here’s what to watch out for.

            Social media seems to encourage many people to boast or exaggerate.  This can harm people with legitimate personal injury claims.  Consider what happens if you post a photo that makes it look like you aren’t hurt as badly as your case claims.  Maybe you post a photo that looks like you are playing with your church softball team.  You may have just posed for one still photo at home plate because your leg injury is too painful to play yet.  When the insurance company defending the claim puts the photo into evidence, how will the jurors know the truth?  As another example, suppose you upload your photo with friends sitting on a boat, and you write, “having a great time – water skiing, wings, and good friends.”  With your back injury, you may be the only one not water skiing, but the insurance company will use the post to argue that’s exactly what you were doing. 

            Social media posts and even passwords are fair game in discovery in court cases.  If you’ve posted it or your friends have commented on it, the insurance company can likely find out about it. 

            Online posts can also hurt your separation and divorce case.  Many a cheating spouse has accidentally proven his or her own affair this way.  Some people can’t resist posting photos taken with their new love interest.  Although your accounts may be set as private, it is not uncommon for one of your Facebook friends to share your posts with your ex.  If you aren’t yet separated, a web page or email left open on a home computer can reveal an affair. 

            Custody cases can also be complicated by social media.  Even if you aren’t really a party animal, will your exaggerated posts make it look like you are given to alcohol, drugs, or staying out all night?

            The best advice if you are involved in an injury case or a separation/divorce case is simply not to post to social media sites at all, and never to put photos or videos online until your case is over.  As the old saying goes, an ounce of prevention is worth a pound of cure.  If you find that impossible, be very careful.  Evaluate everything you write and every photo you upload as if the person or company on the other side of your case sees it and draws the worst possible conclusion.  If that worst conclusion is still all right, then you may be safe. Also, don’t post or reply when you are angry, hurried, or tired.  You may not be as careful then as you would under better circumstances.  If you are involved in a case, talk to your attorney about protecting your case from social media disaster.

LEGAL TIPS FOR YOUTH SEEKING SUMMER JOBS

When the school year winds down, many under-18 youths want summer jobs.  What are the rules these teens and employers need to know?  Let’s focus on jobs that are not agricultural and not in a business owned by the child’s family, as those rules are different.  Summer jobs teach young employees valuable workplace skills and provide income.  At the same time, the law wants those experiences to be safe.  According to the National Institute for Occupational Safety and Health, over 210,000 American children suffer occupational injuries each year, with over 70,000 of them requiring emergency room care.  Both federal law (Fair Labor Standards Act) and state law (NC Wage & Hour Act) apply to youth employment.

            Youth under 18 must have a Youth Employment Certification (YEC), also known as a work permit.  It must be completed and signed by the teen, a parent, and the employer.  An easy place to apply for a YEC is at the N.C. Department of Labor’s website at http://www.nclabor.com/wh/youth_instructions.htm. 

            Jobs considered by law to be hazardous or detrimental are off-limits for youth under 18.  These include logging, power-driven woodworking or punching machines, meat slicing machines, roofing, trenching, electrician’s helper, and more.

            Teens who are 14 and 15 have other special limits that apply in the summer (stricter standards apply during school).  They cannot work more than 8 hours a day or more than 40 hours per week.  They cannot work past 9 p.m.  Employers must give 14 and 15 year old employees at least a 30-minute break after five consecutive work hours.  Teens who are 14 and 15 are restricted from some types of work, like using deep fat fryers, baking, or working in any place where goods are manufactured.  Fourteen and fifteen year olds may not operate machinery, including lawn mowers and trimmers (never mind that they probably mow the lawn at home).  They may operate most office machines and many types of equipment found in food service establishments (like cash registers, toasters, dishwashers, etc.).  These teens may not work inside an establishment that has an ABC on-premises permit. 

Although drug tests may be required of applicant who is under 18, many employers who require tests find the better practice is to obtain parental consent.  However, if a drug test comes back positive, the employer is not legally permitted to tell the parent, even if the parent consented to the drug test.

Private businesses are not legally permitted to do unpaid internships for minors or adults in most instances.  Unpaid internships are usually legal only when the intern’s sole mission is to observe and learn, not to do actual work that the employer’s employees would otherwise be doing.  Government agencies can do unpaid internships legally, and non-profits can always accept volunteers.  Some private businesses choose to have unpaid interns doing actual work, and some young people find the experience to be worth much more than a paycheck, so both parties benefit; however, employers should be cautious, as it does expose them to the risk of a Fair Labor Standards Act complaint.

Excellent resources for more information on youth employment are the U.S. Department of Labor (1-866-4-USA-DOL ) and the N.C. Department of Labor (1-800-NC-LABOR).  Whether you hire teens or you are a teen employee, knowing the rules makes for a better summer employment experience.

MEDICARE DECISIONS AS YOU GET READY TO RETIRE

MEDICARE DECISIONS AS YOU GET READY TO RETIRE

            Health insurance decisions become more complicated as baby-boomers approach retirement age.  Many people want to know when to apply for Medicare, and how it works with their employer or retiree health insurance plans.  Here are some rules to keep in mind for persons without disabilities; rules for disabled persons are different.

            You will be eligible for Medicare when you reach age 65.  This may be different than when you begin receiving Social Security retirement (which could be as soon as age 62 for early retirement or as late as age 70).  About 3 months before you turn age 65, you should receive a letter from Medicare requesting that you start the process of deciding when to sign up for Medicare.  If you do not receive this letter, you should contact Medicare yourself about this time.  If you would like, you can sign up for Medicare as early as 3 months before you reach age 65. 

            The initial enrollment period for Medicare begins 3 months before you reach age 65, and ends 3 months after you reach age 65.  Here’s a trap for the unwary.  If you do not enroll in Medicare during that time period (unless you have a qualified reason to delay your enrollment, like coverage under a current employer’s plan), when you enroll later you will face a penalty in the form of higher premiums and a delay in starting coverage.

            What if you have coverage at age 65 through your current employer’s (or your spouse’s current employer’s) group health insurance plan?  First, this means you can delay signing up for Medicare until that group coverage ends, if you wish.  If your group policy offers good coverage, you may not want to pay Medicare premiums also.  If your employer has 20 or more employees (or is in a multi-employer plan), the company must offer current employees 65 and older the same health benefits under the same conditions as it offers to younger workers.  If you have coverage under one of these larger employer plans and Medicare, the group plan will pay first, with Medicare paying second.  If your employer has less than 20 employees, your group plan may or may not offer coverage to employees who are eligible for Medicare.  If you have coverage through a smaller employer’s policy and Medicare, then Medicare pays first and the group policy second. 

            Do you have retiree health insurance from a job you or your spouse has retired from?  Once you are eligible for Medicare, many retiree policies reduce their benefits so that they only supplement what Medicare pays.  If your retiree policy does this, you will need to sign up for Medicare when you are eligible for it.

            There is much more to discuss about various Medicare topics, which will appear in later articles.  More information is available from 1-800-MEDICARE or online at www.medicare.gov, or through your employer’s human resources office.

NEW 2013 LIEN LAW SOLVES MANY PROBLEMS

NEW 2013 LIEN LAW SOLVES MANY PROBLEMS

            Imagine you are a homeowner who paid a contractor to build your house or to do a major renovation.  When the job is finished, all that is left is to enjoy your new place, right?  Then you learn that the contractor’s unpaid sub has filed a claim of lien against your home.  (You may know that contractors and some subcontractors who perform work on real estate but who don’t get paid can file a claim of lien against the property.)  Suddenly your dream has turned into a nightmare.  Worse yet, suppose you had planned to get an equity line loan based on the increased value of your home, or you did renovations in order to sell your home.  You learn the claim of lien interferes with your getting the new loan or selling the house.

            On the flip side, imagine you are a carpet installer or landscaper who has done work at a job site for a developer.  Before you have time to file a claim of lien, the developer sells the house. The contractor has been paid in full (meaning he got paid for your work), but he didn’t pay you. 

            Claims for these hidden liens became so expensive in the recession that they jeopardized the ability and willingness of title insurance companies to cover them.  Everyone wants title insurance to cover liens, but the title companies had to be able to manage the risk.  Some homeowners didn’t have title insurance, and had to bear this burden themselves.

            This has happened many times on projects large and small, commercial and residential.  The new law, effective April 1, 2013, creates a lien registry system to help stop these bad surprises.  When your project starts, register it with Liens NC (www.liensnc.com) and appoint a “lien agent.”  The lien agent is a title insurance company which, for a $25 fee, monitors possible lien claims on your project.  Contractors and subs must tell their subs and suppliers who the lien agent for the project is; also, the building permit lists the lien agent.  Anyone who works on the project must register on your Liens NC page before they can later file a claim of lien against your property.  Registering does not take the place of filing the actual claim of lien if a sub wants to enforce its lien rights.  However, registering puts the sub or supplier on the “radar screen” of the owner and the title insurance company.  The owner will be able to set up email alerts when new notices are filed on his project.  The owner and/or title company can contact these tradespeople before closing or final payment to determine if they have been paid.  Because the lien registry is public and because subs who aren’t worried about getting paid typically don’t register, if a sub sees a lot of new notices for a particular developer’s projects, it may be advance warning of the developer having financial problems.

            Registering with Liens NC is required for all construction projects EXCEPT when the project consists of improvements costing less than $30,000 to your own single-family residence.  However, you can use the system for any project, so you might want to use it voluntarily for projects that involve subs or suppliers to help avoid bad surprises.  This article addresses the basics; for more information, ask an attorney, go to www.liensnc.com, or read the new N.C.G.S. Chapter 44A.

BEHIND ON PAYING N.C. SALES AND PAYROLL TAXES?

With the economic slowdown, more small businesses have fallen behind on paying sales tax and payroll withholding taxes.  These are called “trust taxes,” because businesses collect them from other people (customers or employees), and are supposed to promptly send them to the State.  The N.C. Department of Revenue has announced a new program called the Small Business Counseling Program.  It gives small businesses a break on penalties and fees on these taxes if they will follow a repayment schedule and participate in free, confidential business counseling.  Businesses are eligible if they have 200 or fewer employees, and if they haven’t been the subject of criminal investigation or prosecution for being behind on these kinds of taxes.

The Department recognizes that when a business falls behind on sending in taxes it collected from someone else, it is often a symptom of bigger management or financial problems.  It means the business is using these funds (which it held in trust to be paid to the State) for other financial obligations (utilities, payroll, loan payments, etc.) which it cannot meet, like robbing Peter to pay Paul.  When the Department waived penalties and fees in the past without requiring business counseling, they would see the same businesses falling behind on these taxes again and again.

For this program, the Department sets up a payment plan over 6 to 24 months, depending on the amount due, and waives hefty penalties and fees.  The Department requires paying the taxes owed plus 5% interest.  In return, the business must stay current on its new tax obligations, follow the payment plan on delinquent taxes, and participate in one-on-one, free, confidential business counseling with either the Small Business Technology Development Center (SBTDC) or the N.C. Small Business Center Network (SBCN).  The counselors do not share any information about the business with the Department; they do share whether the business participates.

SBTDC is a business advisory service of the University of North Carolina system, with offices near many member schools.  Nearby offices are in Chapel Hill and Durham.  SBCN is a business counseling service of the NC Community College System, which is available in almost every county in the state.  Both SBTDC and SBCN are experienced in areas ranging from financial analysis (including cash-flow), marketing, operations, strategy, and performance.  I have served for years on the Regional Advisory Board for the SBTDC’s Chapel Hill office.  Speaking from experience, SBTDC is an exceptional resource for all small business owners and managers, whether the business is having problems or wants to build on current success.  Both SBTDC and SBCN provide counseling services for small businesses generally, in addition to the Department of Revenue program.

What happens if the business doesn’t meet all of the program’s requirements?  The Department will reinstate penalties and fees, which are quite steep.

For more information, call the NC Department of Revenue at 1-877-252-4549 or visit www.dornc.com.  To learn more about SBTDC, go to www.sbtdc.org, and for SBCN, go to http://sbcn.nc.gov.  The Department hopes to have a win-win program where the State collects delinquent taxes, and participating businesses save money on settling up their tax debt while achieving better financial health to prevent these problems from arising again in the future.

 

WHEN IS THE BEST TIME TO START SOCIAL SECURITY RETIREMENT BENEFITS?

WHEN IS THE BEST TIME TO START SOCIAL SECURITY RETIREMENT BENEFITS?

As more baby boomers approach retirement, they will need to decide when to begin receiving Social Security retirement benefits. The earliest date you can claim Social Security retirement benefits is age 62. You will receive a reduced monthly benefit at age 62 because (if you live to full life expectancy) you will be receiving checks for a longer time. If you wait until full retirement age (age 66 for those born 1943-1954, age 67 for those born 1960 and later, and 66 and some months on a graduated scale for those born between 1955 and 1959), you will receive a higher monthly benefit, but based on life expectancy, you will not receive it for as long as if you had begun to receive it at age 62. You can wait until age 70 to start benefits, for a higher yet monthly benefit (since you won’t receive it as long, based upon life expectancy).
If you start receiving benefits before your full retirement age, your monthly benefit may be reduced if you continue to work. If you take benefits early, as of 2012 you can earn up to $14,640 per year from work without reducing your benefits. In general, above $14,640 per year, you will lose $1 in benefits for each $2 you earn from working. Your benefit will not be reduced because of income from sources other than working (like interest or dividends). If you wait until full retirement age to take Social Security, you can keep working and earn as much as you like without losing benefits.
So, how do you decide? Here are some factors:
1. How long do you expect to live? The “breakeven” point for all 3 scenarios where they work out the same (claiming at 62, claiming at full retirement age, and claiming at age 70) is 85 years according to the Social Security Administration (SSA). Based on your health and family history, if you do not think you will live to be 85, you may do better to take Social Security as early as possible. If you think you will likely live beyond age 85, and if you can wait until age 70, you may collect the most in benefits over your lifetime.
2. As of 2012, if you want to keep working and you are fortunate to earn substantially more than $14,640 per year, your monthly benefit at age 62 may be quite small. For example, if you earn $30,000 per year, you will lose about $640 a month off your monthly benefit.
3. What about health insurance? You will not qualify for Medicare until age 65. For cost reasons, you may want or need to keep health insurance through your job until you reach age 65. Alternatively, if you can be added to a spouse’s employer policy, that may bridge the gap.
4. What will your retirement financial needs be? SSA and many financial planners advise having about 70% of your pre-retirement income for a comfortable retirement. Depending on your Social Security benefit, your other savings, and your living expenses, you may need to work past age 62.
To compare different options, visit your local Social Security Office (in Durham or Burlington), or go to www.socialsecurity.gov/estimator. There are many other issues to consider with Social Security and Medicare. We will address these topics in separate articles.

“RIGHT TO WORK” AND “EMPLOYMENT AT WILL”

“RIGHT TO WORK” AND “EMPLOYMENT AT WILL”

A client recently asked me this question: “I have read that North Carolina is a ‘right to work state,’ and that North Carolina is an ‘employment at will state.’ – what do those terms mean for employees and employers?
That is a good question, and I am happy to shed some light on it. Yes, North Carolina employment law includes rules known as “right to work” and “employment at will.” However, they address different parts of the employer-employee relationship, so they are a bit like apples and oranges.
When we say that North Carolina is a “right to work state,” we mean that a North Carolina employee cannot be required to join a union as a condition of employment. An employer who has a factory in NC might recognize a union, and NC employees may choose to join the union, but they cannot be required to do so. In that instance, the NC employee can look at the benefits the union offers and at dues required for union membership, and choose to join or not. In states without right to work laws, some (but not all) employers will have what is called a “closed shop,” meaning that only union members are hired to work there, so all employees must join the union. The “right to work” law means there can be no “closed shops” in North Carolina. Historically, North Carolina has not been friendly to unions. Unions do not like the “right to work” law since it means unions in North Carolina employers are less powerful than if all employees could be required to join.
“Employment at will” has nothing to do with unions. Instead, it is a rule about when either the employer or they employee can end the employment relationship. The rule says that the employer can fire an employee without notice for any reason or no reason, as long as it isn’t an illegal reason. Illegal reasons include discrimination based on race, ethnicity, gender, age, disability, or military/veteran status, as set out in federal and state laws. Some local ordinances create additional protected classes, like sexual orientation. The flip side of the coin is that employees can quit without notice for any reason or no reason. An employer may create incentives for employees to give notice, like an employee handbook rule that an employee gets paid for unused vacation if he/she gives a certain amount of notice before leaving. Those kinds of incentives are lawful, but they do not force an employee to give a notice period. Employees are usually more concerned about losing a job without notice than in being able to quit without notice, so employees usually think of “employment at will” as being a rule that benefits employers more than employees. If an employee is fired without cause, he or she can usually receive unemployment compensation from the Employment Security Commission of North Carolina. Unemployment payments are sent from the state government (not from the former employer), but employers who have claims will usually end up paying more to the state in unemployment taxes as a result.

WORKERS’ COMP FOR EMPLOYERS AND WORKERS

WORKERS’ COMP FOR EMPLOYERS AND WORKERS

Both employers and workers need to know the law of Workers’ Compensation. Not knowing your rights and responsibilities can be costly.

For Workers
1. Remember that Workers’ Comp covers not only accidental injuries on the job, but also occupational diseases. For example, neck problems are common for dental hygienists, and shoulder problems are common for construction workers who do a lot of overhead work.
2. Not all workplace injuries are covered by Workers’ Comp. The injuries must be “accidental,” meaning something out of the ordinary work routine happened.
3. If you were partly at fault for your injury, it does not necessarily defeat your claim.
4. To keep your claim alive, it is essential to report your injury to your employer (supervisor will do) as soon as possible. A written or email report or notice is best. You must also file a Form 18 with the N.C. Industrial Commission, which can be found at the Industrial Commission’s website (www.ic.nc.gov). If a Form 18 is not filed within 2 years of your injury, you lose your right to pursue the claim.
5. Once you have healed as much as you are going to (called maximum medical improvement), you may have choices about how to settle the permanent disability part of your case. The insurance company will not tell you about those choices; they will send you the paperwork for the one they prefer, which will be the one least expensive for them.
6. If your condition gets worse and you haven’t settled in a way that closes your case, you have two years from the last check or last medical care to re-open your case for additional compensation and/or medical care. If you wait past that period to file the necessary form with the Industrial Commission, you lose your rights.

For Employers
1. The N.C. Industrial Commission recently began a crackdown on employers who are required to carry Workers’ Comp insurance, but who do not. A business is required to have insurance if it has 3 or more employees, regardless whether they are full-time or part-time.
2. Businesses cannot avoid having to carry Workers’ Comp insurance by calling employees independent contractors. If a worker works entirely for you, uses your tools, works hours that you set, and gets specific directions from you, he is likely an employee (legally speaking), regardless what you call him.
3. If your business hires subcontractors, be sure subs provide you a certificate of their own Workers’ Comp policy. If your sub is hurt and doesn’t have her own insurance policy, she probably has a claim against your company’s policy.
4. For many businesses, buying a Workers’ Comp insurance policy may not be as expensive as they think. Premiums are based on payroll and on the type of work. Insurance is expensive in lines of work where injuries occur often, like construction, home health care, auto repair, etc. Others, like those doing office or customer service work, tech companies, and retail businesses without heavy lifting, may find premiums are not as expensive as they may think.
5. When getting a quote for Workers’ Comp insurance for your business, ask your agent to quote it with and without covering you as the owner. Many times the extra cost to cover the owner is minimal, and makes economic sense. If not, at least you are making an informed choice.

Whether you are an employer or a worker, you can obtain more information about Workers’ Comp from the N.C. Industrial Commission (www.ic.nc.gov or 1-800-688-8349) or from an attorney whose practice includes Workers’ Comp.

YOU’VE BEEN NAMED EXECUTOR – WHAT’S NEXT

YOU’VE BEEN NAMED EXECUTOR – WHAT’S NEXT

            Someone important in your life has passed away.  The Will names you as the Executor of  the estate.  What happens next?  How can you make things go smoothly?

  1. Identify and take control of estate assets:  Some of your most important duties are determining what estate assets are, and safeguarding them until the right time to use them to pay creditors or to disburse to heirs.  If you as an Executor let go of estate assets too early, and it turns out they are needed to pay claims or they are supposed to go to another heir, you are financially responsible.
  2. Where to get basic information:  The Clerk of Court has an excellent booklet available describing the probate process.  You are not required to have a lawyer.  However, some estates are complicated enough that you’ll need a lawyer.  Some Executors choose to have an attorney even if they could handle the estate themselves, to make the process easier.  Lawyers know what forms need to be filed, when, and where.  They sometimes know easier ways to get things done.
  3. Decide what kind of probate estate is needed:  Many people know the gist of a “regular” estate, which takes at least 4-5 months to complete, requires running a newspaper creditor notice, and includes various forms filed with the Clerk.  Sometimes there are shortcut alternatives.  For example, when the surviving spouse is the only beneficiary, and that spouse does not mind taking on the estate’s debts, Summary Administration may allow opening and closing the estate on the same day.  In estates with personal property valued at less than $20,000 to $50,000 (depending on the family composition), a “small estate” process (technically called Affidavit of Collection) may save time and money.
  4. Get qualified:  Opening the estate file with the Clerk gets you the papers showing you are officially the Executor, called Letters Testamentary.  You’ll use these Letters to accomplish estate business, including opening an estate bank account to keep finances straight. 
  5. Valuing assets:   The Executor must list values for all assets.  Many times tax value will suffice.  However, remember that for real estate, higher values are usually better because you’ll want to maximize stepped-up basis (meaning a savings on capital gains taxes if the property is sold later).  It may be worth getting an appraisal to justify a higher value on real estate.  In general, lower values are better on personal property, like vehicles and furnishings, to save money on court filing fees.
  6. Let the creditor period run:  The Executor may be required to publish a newspaper notice to creditors, or may choose to publish one if not required.  The value of the notice is that it gives a 90 day period for estate creditors to file claims (except those the Executor already recognizes as valid).  That means unknown creditors cannot “come out of the woodwork” later and claim they are owed money. 
  7. Finishing the estate: After the creditor period passes, the Executor can determine what money is needed to pay creditor claims, and can pay them.  If necessary, assets like vehicles, furniture and land can be sold to generate money to pay creditors.  There may be tax returns or other tax forms to be done; an accountant can help with these.  The Clerk can approve payment of a commission to the Executor for his work.  The estate can also reimburse the Executor for his expenses.  Once creditors and estate administration expenses are paid, the Executor will distribute the remaining assets to the beneficiaries in the manner the Will requires.  A Final Account is filed with the Clerk, which officially closes the estate.

              Sometimes people are comfortable handling a simple estate without an attorney.  What can an attorney help you with?  By consulting an attorney early on,  you  can    determine whether probate is necessary at all and, if so, what is the simplest, fastest, least expensive way to accomplish this.  Knowing this early on can save unnecessary expense.  Once you know an estate is needed, the attorney knows what needs to be filed and done, along with when and where to get these things taken care of.  This makes it easier and less time consuming to handle the estate on time and to know it is done right.  Some types of estates particularly benefit from help from an attorney, including those with real estate, those with many different assets, those with beneficiaries or heirs in conflict, and estates with a lot of debts.  Some attorneys offer an initial consultation with new clients at no charge or at a small fee.  Steffan & Associates, P.C. offers such a consultation a no charge, so that you can find out whether you need an attorney and what your matter will cost without worrying about the “meter running.”

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