Bellevue Family Law Frequently Asked Questions
Making important decisions about your family's future can be difficult -- and learning about the legal avenues that can make those changes happen can also be hard. This page of Bellevue, WA, divorce frequently asked questions is here to help those who are learning about Seattle family law issues such as divorce, child custody, domestic violence, and divorce mediation.
Do you have a question that isn't addressed below? Contact us today to talk to an experienced Seattle family law attorney.
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Is legal separation required before a divorce?
When people are considering a divorce, one of the first questions they have is about whether they need to go through the legal separation process first. Because there are many misconceptions and myths surrounding legal separation and divorce, it’s important to know the difference between the two and whether you really need to go through a separation before a divorce.
Legal Separation Versus Divorce
In the state of Washington, legal separation and divorce are actually very similar—but there are a few key differences, including:
- You cannot marry someone else. When you’re legally separated in Washington, you are still technically married in the eyes of the state. This means you cannot get re-married if you enter a relationship with someone else unless you proceed to a full divorce first.
- You must wait six months for a divorce. When you go through a divorce, there is a 90-day waiting period before the decree of divorce can be issued. When you legally separate, you must remain so for at least six months before the court will accept a conversion to divorce.
- Legal separation is not a divorce. The name itself matters to some people for moral or family reasons, religious beliefs, or personal preference. Some people or religions have a preference to avoid divorce. Legal separation allows a way for some people to go their separate ways without ever officially being “divorced.”
- Legal separation may let you keep insurance. When you get divorced, most insurance policies (such as health insurance) won’t let someone who isn’t married stay on a family policy. By contrast, many policies allow legally separated partners to remain on a shared policy. It’s important to check with your insurance agent or insurer about this.
The procedures for a legal separation are nearly identical to those of a divorce. The same legal statute in the Washington Revised Code applies to both, and the same standards of asset division are followed. That is, alimony is calculated the same way, parenting plans for child custody are formulated in the same way, and any community property is divided up equally, just as with a divorce. The paperwork filed with the court is also almost identical.
Separation Before Divorce
You do not need to legally separate before a divorce. In fact, it may be against your own best interests to do so—many, if not most, legal separations end in divorce anyway. In most situations, a legal separation prolongs the process of starting your new life, since you must wait at least six months to convert a separation to a divorce.
Some couples choose to use this time to engage in marriage counseling or other therapy and attempt to reconcile, under the logic that a six-month deadline provides some incentive to work things out. After all, the decree of separation can be reversed if both parties agree and file a motion with the court. On the other hand, it’s also just as easy to convert the separation into a divorce because the legal separation already has laid the groundwork for the divorce, and both parties have likely been living as though divorced during that time.
Legal Help With a Separation or Divorce
Even if you choose legal separation instead of divorce, it’s still a good idea to have an attorney on your side. Remember that asset division, child custody, and spousal support are all negotiated as a part of legal separation. Should you wish to transition to a divorce after the six-month waiting period is up, you’ll already have an attorney who is familiar with your situation to help protect your rights and ensure that you get your fair share of marital property.
If you have questions or concerns about your legal separation, the Law Offices of Molly B. Kenny is here to help you. To arrange a private consultation in our Bellevue offices, please contact us by phone, or use our contact form to send an email today.
How much does probate cost?
When you’re making an estate plan and determining how to best pass your assets on to your heirs and beneficiaries after you die, probate costs are often a big question mark. It’s something that everyone who is just getting started in estate planning hears about, and it’s often high on their list of planning concerns. After all, the goal of estate planning is to plan for your family’s future when you’re gone, not spend it all in fees. Here’s some important information about probate fees, how to avoid additional costs, and how to contact an attorney for help.
Typical Probate Expenses in Washington
One of the biggest probate expenses in Washington is just the amount of time it takes to go through the entire process. There are certain minimum time limits that must pass in order to successfully close out the estate, such as the mandatory notice to creditors, which must be published for at least four months. The time required to inventory the estate, get appraisals, manage complex title issues, or handle tax problems all adds up. It can take from six to nine months for even the simplest estate. Larger or more complex estate situations can extend this time considerably, and the longer it takes, the more likely attorney’s fees will pile up, too.
The actual fixed expenses involved in probate depend almost entirely on the details of the estate. There are many filing fees with the court involved in the process, which can run from a few dollars each to over $200, depending on the filing. Your county clerk’s office will have a schedule of fees, and King County has these fees published online. There are a few other fixed costs that can’t be avoided, as well. The four-month publication of a notice to creditors is one expense that simply can’t be ignored, so you’ll likely end up paying your local newspaper’s rates for a classified ad for that period of time.
Estate taxes are one major source of dread that many people have, but there is a little bit of good news there for smaller estate situations: the standard exclusion amount in Washington is a little over $2 million dollars, and the federal estate tax exemption is over $5 million dollars as of 2017. Larger estates will have to file and pay these estate taxes, which often also means hiring a tax attorney or accountant, which only adds to the expense.
Whether your estate is large or small, there are many legal tools available to help your family avoid the probate process after you die, including:
- Living trusts. You may choose to use either a revocable or irrevocable trust to hold your assets, allowing the transfer of assets directly to the named beneficiaries and avoiding probate.
- Community property agreements. This agreement between spouses allows the transfer of property to a surviving spouse directly, making probate unnecessary.
Very small estates may also be able to avoid probate altogether, as Washington does not require probate for estates with assets under $100,000.
Every probate situation is unique, with different goals and challenges to be overcome. Your estate planning attorney will be able to tell you the best tools to use to meet the unique needs of your own family’s situation, so you can have peace of mind knowing that your loved ones will be cared for when you are gone.
Legal Help for Estate Planning
At the Law Offices of Molly B. Kenny, we have spent years helping families and individuals plan for the future, and we’d like to be there for you, too. If you have any questions or concerns about your estate planning situation, schedule a private consultation with one of our experienced attorneys here in our Bellevue office. Reach out to us by phone, or use the contact form to send an email to speak to a professional today.
Do I need a lawyer to create a separation agreement in Washington?
In the state of Washington, the court permits couples who wish to legally separate to do so without filing for a divorce. This option is available for those who may not wish to engage in a formal divorce for any number of reasons, including financial concerns, personal or religious objections to divorce, concerns for the children, or if the couple is unsure about whether they’re ready to divorce at all.
If you’re thinking about a legal separation in Washington, here’s what you should know about the process, including the advantages and disadvantages of separation versus divorce, whether you need a lawyer’s help to create your separation agreement, and how to get legal help with a separation or divorce.
Advantages of Legal Separation
The process for a legal separation is nearly identical to the process for a divorce. In a legal separation, you file a petition with the court that is similar to a divorce petition. Since Washington is a community property state with specific rules about the division of assets acquired by either partner during a marriage, dividing up your marital property (including debts) will also be required as a part of that process, just like in a divorce. Partners may come to a mutual agreement about what’s fair or may rely on the court’s help in splitting the marital assets fairly.
Much like with a divorce, it will also be necessary to make arrangements for the children in your separation agreement, including a parenting plan. It should include who will maintain physical and legal custody of the children, visitation rights, and plans for child support payments.
Why Legally Separate Instead of Divorce
The key difference is that after the legal separation has been filed, in the eyes of the law, the couple remains legally married and may not divorce until six months have passed. This can allow both partners time to disentangle their lives from the other and make financial arrangements, find housing, and work through asset division. After the six months have passed, the separation may be transitioned into a divorce by either partner by filing a petition with the court. Some couples choose to use the six months to work on aspects of their relationship so they may reconcile, in which case the separation can be ended without needing to go through the legal process of re-marrying.
Creating a Separation Agreement
Many people wonder if they can create a separation agreement on their own, without involving an attorney, and the answer is yes. The state of Washington does not require a lawyer’s help to create a legal separation agreement, and the forms are available online through the website of the Washington Courts.
However, keep in mind that it may not be in your best interests to sign a legal separation agreement without the advice of an attorney. Your separation agreement is considered a contract, and you want to protect your rights. Remember, the terms of your legal separation are almost exactly like those of a divorce—the biggest difference being only that after a legal separation, you cannot remarry without first obtaining an actual divorce. Your attorney can help you make sure that the terms of your separation agreement are fair and you’re receiving your due share, especially when there are significant assets at stake.
A major advantage to having an attorney help with your separation agreement is if you and your ex-partner do decide to go ahead with the divorce. After the six-month waiting period is up, you’ll already have an attorney on your side who knows you and is familiar with your situation, ready to help you with your unique family needs. On the other hand, if you and your partner reconcile, your attorney will be able to reverse the separation with a minimum of hassle, saving you time and headache.
Get Legal Help for a Separation Agreement
The Law Offices of Molly B. Kenny has decades of family law experience and is dedicated to helping families like yours move forward into a new chapter of their lives after a separation or divorce. Our office is conveniently located in Bellevue, so please call us, or click the contact link to arrange a private consultation with an attorney who can help you today.
Is a community property agreement right for my estate plan?
A community property agreement, or CPA, can be a powerful tool for your estate plan. It has some real advantages for certain situations that can be used to avoid probate when one partner in a marriage dies. However, it may not be the best solution for every marriage, as there are many limitations that a CPA has that other estate planning documents do not.
Here’s what you need to know about having a community property agreement as part of your own estate plan, including what a CPA does, what limitations it has, and whether you need an attorney to help you.
Creating a Community Property Agreement
Washington is a community property state, which means that when you enter into a marriage, most of the assets or property that you each acquire afterward belong in equal part to each partner (although there are exceptions, such as gifts or inheritances). However, property owned by each partner before the marriage stays separate, unless it is later commingled with community property.
A CPA is a form of legal agreement between you and your spouse that converts all property of both partners into community property and then transfers ownership interest of all that community property to the surviving spouse without the need to go through probate. This can save quite a bit of time and some legal expense, too, so for less complex situations, it can be a relatively simple and painless document.
In the state of Washington, you do not need an attorney to create a CPA. It’s a document that you can create on your own, if it meets certain criteria. At a minimum, a CPA typically should state that:
- Any separate property owned by either partner must become community property
- Any future property acquired by either partner, including gifts or inheritances, must become community property
- Upon death of a partner, all community property is vested in the surviving partner
It’s also important to note that a CPA must not only be signed by both partners but also notarized to be considered valid. If this requirement is not met, the CPA likely will not hold up in court, and the assets of the deceased partner may end up going through probate despite his last wishes.
When a CPA Is Not a Good Choice
If you want to create a CPA, it’s a good idea to think about why you’re creating it and what your estate needs really are. There are many instances where there is a better solution, such as a will. Your CPA cannot:
- Make gifts to any other heirs, beneficiaries, or favored charities. All of your property must go to your surviving spouse.
- Name a personal representative to manage your estate.
- Cite guardians for your minor children.
- Make arrangements for your property if you and your spouse should both die at the same time.
Changing or dissolving a CPA is a little more difficult than with a will, too. Unlike a will, any changes to a CPA must be agreed upon by both partners, and a new document must be drafted, signed, and notarized. Revoking a CPA also requires the signature of both spouses, whereas a will can be revoked by simply destroying the document.
Get Legal Help With Your Estate Plan
Although you’re not required by law to have an attorney help you with your community property agreement, the potential complexities and pitfalls of a CPA mean that having a professional review yours is never a bad idea. An attorney can make sure that your CPA is legally valid, does what you need it to do, and there is no conflict with any other part of your estate plan.
If you’re not sure whether a community property agreement is right for your marriage, the Law Offices of Molly B. Kenny is here to help you ensure that your family and loved ones will be taken care of when you’re gone. To get the help that you need, please call us by phone or send an email using our contact form and arrange a private consultation to discuss your estate planning needs in our Bellevue office.
Where should I keep my will and other important documents?
Your estate plan includes a number of important documents that need to be kept safe yet must be accessible after you die. This includes your will, your living trust, powers of attorney, and any living will or advance directives you may have. It’s critical that these documents are protected; but you may need to access them again in the future to update them, and the executor of your estate needs to be able to find those documents in order to ensure your final wishes are followed. Here is some important information about storing your important paperwork.
Where to Store Your Will
There are a few choices that make good sense for ensuring that your will and other estate planning documents are secure until they’re needed again. These include:
- Give documents to your personal representative. One of the most obvious choices is to store your documents with the person who will need to access them first. When you choose your personal representative, you should first make sure that he is willing to accept the responsibility. During this conversation, you may ask if he would be comfortable keeping copies of your estate documents. You may also ask that your documents be stored in a secure location such as a safe or a safety deposit box controlled by your representative. If privacy is a concern, enclose your documents in a sealed envelope with instructions that it is not to be opened until your death.
- Ask your attorney to keep your documents on file. Most attorneys who specialize in estate planning and probate issues understand the need for secure document storage and can keep a copy of your documents in the office or other secure file storage location. If you choose to use the services of an attorney for this, make sure that your family, personal representative, and other trusted parties know that you’ve made this choice and are given contact information for the attorney.
- Store documents in a safety deposit box. A safety deposit box can be an appropriate place to store your estate plan, as long as you do a little planning first. You’ll need to notify your personal representative that the safety deposit box exists, where it’s located, and ensure that that he’s authorized to open the box, or a court order will be needed. You’ll also want to ensure that he has a key or access to the key to the box.
- Keep documents in your home. Your home is another option for storing your estate planning documents, but it’s best if you take some precautions if you make this choice. The safest place in your home is in a heavy safe that’s rated for fire and water resistance and anchored to your home’s structure in some way. You’ll also need to let your personal representative know that your documents are located in your safe, which means disclosing its existence and location. You must also make sure that he has access to the key or combination.
Whatever option you choose, note how important it is that your personal representative knows where your will and other documents are located and has access to them.
Where Not to Store Your Will
There are a few places where it’s generally never a good idea to store your estate planning documents, including:
- With your beneficiaries. Storing your documents with your heirs, beneficiaries, or others who have a stake in the contents of your will is generally never advised. The potential conflicts of interest could create problems for your estate.
- Online. Your personal representative is going to need an original signed copy that’s witnessed by two people. A copy printed from a computer, cloud storage service, or website isn’t likely to be accepted by the court.
- In the freezer. A surprisingly common myth is that the freezer is a safe location for important documents. Even if you seal your estate plan in a waterproof container, it’s too easy for paper to be damaged by the cold, moisture, or condensation, or to get thrown out while cleaning.
Remember, your will and other documents form the heart of your estate plan. By taking care of how and where you store them, you’ll be ensuring that your last wishes are followed, and your family will be taken care of when you’re gone.
Get Legal Help With Your Will
If you have questions about your will or other estate planning documents, the Law Offices of Molly B. Kenny is here to provide the answers that you need. Please call us, or email us using our contact form to arrange a private consultation here in our Bellevue office.
If I make a living trust, do I still need a will?
A living trust is a powerful estate planning tool that can help your heirs and beneficiaries avoid the probate process after your death. A properly executed trust will ensure that your assets are distributed faster than if they had to go through probate—and with fewer fees and other expenses. It’s one last gift you can give to those you leave behind. However, many people faced with creating a living trust may not be aware that a living trust by itself isn’t enough to protect their estate. One of the most common questions people have is whether a last will and testament is necessary if a living trust is created.
Protecting Your Estate’s Assets With a Will
The simple truth is that a living trust by itself is not enough to protect your assets after you die. A living trust is only as good as the assets you put in it. If you have not fully funded your living trust with every single eligible asset, the remaining assets may be required to go through the probate process. A sudden inheritance, a forgotten asset, or simply something that you never got around to transferring to your living trust could all be forced to go through the probate process, unless you create what’s sometimes called a “pour-over will.” Although it is no replacement for properly funding a living trust, the pour-over is legal device that will help catch those forgotten assets and get them into your living trust. The downside is that the probate court will first have to take action, allowing the assets to be given to your trust, but it’s better than having to go through the full probate process.
Protecting Your Children With a Will
Another extremely important function of a last will and testament is appointing guardianship for your children. If you should pass away while your children are minors, you’ll likely want to specify someone you trust who will be responsible for taking care of them. Otherwise, that decision will fall to the court’s rules, which could leave your little ones in the care of someone you wouldn’t be comfortable with.
You can also use your will to appoint someone to take care of the assets you leave to your children until they reach an age when they can use your final gifts responsibly.
A will also allows you to name a personal representative (sometimes called an executor, although this term is no longer used legally) to your estate. Your personal representative will be responsible for carrying out the terms of your will, inventorying your assets, paying debts out of estate assets, and distributing the remainder to beneficiaries. A personal representative is a position of trust, so it’s important to choose someone who willingly accepts the responsibility. You may want to have a back-up representative named, too, in case your first choice is later unable or unwilling to take on the task of administrating your estate.
Get Legal Help With Your Estate Plan
There are many advantages and some disadvantages to both living trusts and wills that will affect the final outcome of your estate. An experienced estate planning and probate attorney will be able to answer your questions, help you decide what’s best for your individual needs, and craft a plan that will ensure that your family is taken care of.
To get the answers to your estate planning questions today, The Law Offices of Molly B. Kenny is available to help you. Call us, or click the contact link at the top of the page to send us an email, and arrange a private consultation with a legal professional in our Bellevue office today.
Will a criminal record affect child custody and visitation rights?
When you get a divorce in the state of Washington and there are children involved, part of the process involves setting up a parenting plan. This plan will determine the residential or physical custody for your children, which spells out where they will live, as well as visitation rights. It also determines legal custody, to make it clear who has the right to make important decisions about a child’s life, including education and health care.
The parenting plan is a form of court order, meaning that a judge will make a decision about what he believes is in the best interests of the child. There are many factors that the court will consider, but one big question that factors in is whether the plan can be affected by the criminal record of a parent.
Past Crimes May Affect Your Parenting Plan
If you or your former spouse have any form of criminal record, it can definitely affect your child custody arrangement. However, the court considers each child custody situation on a case-by-case basis, so a record isn’t necessarily a major roadblock to your case, and a criminal conviction will likely cause more concern than an arrest with no conviction.
The court may look at other factors when considering a prior record, including:
- Who was the victim? If the crime involved psychological harm or abuse to a child, the court is much more likely to restrict custody and visitation rights. If the crime was a violent one or a sex crime, parental rights may be removed entirely.
- What was the specific offense? The nature of the offense makes a big difference. Domestic violence or other violent crimes are of great concern to the court. Prior drug or alcohol abuse-related charges can also lead to court-ordered drug tests via blood or hair, and a positive test could severely impact custody rights.
- How old is the conviction? If it’s a single charge from a long time ago, it’s less likely to have a major impact on the custody situation, especially if the charge was a relatively minor one.
- Was it an isolated incident? A continued series of charges shows the court that the parent may not possess sound judgement. Much of the court’s concern is with how a parent’s lifestyle and past history of recklessness will affect the child’s current and future circumstances, so that a single and relatively minor “youthful indiscretion” from long ago is likely to have less of an impact than a string of more recent charges.
- What was the sentence? The length and nature of the sentence are also important, especially if it hasn’t been served yet or is currently being served. A prior charge with a long sentence, or a series of shorter sentences, can have a severe impact on custody because it shows the court that the parent in question may not be able to provide a stable living environment for the child.
The key factor that the court will use to determine custody arrangements is written simply in state law. The Revised Code of Washington (RCW 26.10.100) states that “The court shall determine custody in accordance with the best interests of the child.” That’s the bottom line for the court, regardless of the wishes or interests of the parent.
What You Can Do
If you’re concerned that a criminal history could affect the outcome of your child custody situation, a Washington State child custody attorney may be able to help you. An attorney can provide you with the answers you need about your legal situation and assist you and your family through the divorce process from start to finish.
At the Law Offices of Molly B. Kenny, we have spent decades representing families facing all types of divorce and child custody issues. Going through a divorce is a challenging process, and we’re here to help you every step of the way. To speak to an experienced family law attorney about your custody case, please call us, or use the contact form to email us and arrange a private consultation here in our Bellevue office.
Do I need a restraining order as a part of my divorce?
A restraining order is often a point of confusion for people facing a divorce. There are different types of restraining orders available to use, depending on the situation. All of them are court orders, in that they’re authorized and granted by a court of law and are enforceable as such. If you’re considering a divorce, it’s important to know the most common types of restraining orders, when they might be necessary, and what they can and cannot do for you during your divorce.
Temporary Family Law Orders
A temporary family law order is usually the type of restraining order most people use during divorce, and it encompasses many areas not covered by the other kinds of court orders. Unlike a domestic violence protection order, it does not require violence or the threat of violence in order to be filed.
A family law order may require the respondent (the person whom the order is filed against) to vacate the family home, or it may allow you to collect personal property from the home. It can also:
- Divide up property
- Grant use of a vehicle
- Make child custody arrangements or changes
- Require child support payments
- Ensure that regular household expenses are covered
A key component of a temporary family law order is that it can protect your property during the divorce. It’s common for spouses to try and hide assets during a divorce in an attempt to deny a divorcing partner his fair share of the marital property, but a family law order can work to prevent that from happening.
Using this type of order, you can temporarily stop your spouse from selling, transferring, or otherwise disposing of any property during the divorce. It can also prevent your spouse from changing any insurance plans you may have, including medical, auto, property, and life insurance policies. This helps ensure that premium payments are kept up to date to avoid “accidental” cancellations that may be an attempt to deny you benefits or prevent you from receiving your rightful share during the asset division phase of the divorce.
Domestic Violence Protection Orders
A domestic violence protection order is only used when domestic violence is an issue, and it can be used to make the respondent leave a shared home or bar him from entering the victim’s residence; it can allow the victim to retrieve personal effects from the home; or it can grant the use of a vehicle. A domestic violence protection order can also force the respondent into counseling, and it may require the respondent to temporarily surrender firearms or other dangerous weapons to law enforcement. It is more limited in scope than a family law order but may be granted more quickly by the court.
Violation of a domestic violence protection order will lead to the arrest of the respondent, which may end in charges of contempt of court, a misdemeanor, or a felony, depending on the circumstances.
A no-contact order is designed to protect victims of repeated domestic violence when the criminal defendant has been released before a trial, and there is a risk of further violence or harm. This type of order is typically shorter-lived and serves primarily to protect victims from further violence during an ongoing criminal case.
Get Legal Help With Your Restraining Order
If you’re concerned about physical safety, child custody arrangements, access to your property, or the risk of your spouse hiding assets during your divorce, a restraining order may be what you need to protect yourself. Your lawyer will be able to advise you about what’s right for you and your family, so that you can make the best choice.
If you need legal help during your divorce, the Law Offices of Molly B. Kenny is here to assist you. To arrange a private consultation in our Bellevue office, please reach out by phone, or use the contact form on this page to send an email today.
Should I get an attorney to help write my will?
Creating a will is often the first step for people who are just beginning the estate planning process. Many wonder whether they’ll need a lawyer to create a will, especially in an age where so much legal information is readily available online.
In the state of Washington, there is no requirement that a lawyer be involved in the creation of your last will and testament. But it’s often a good idea to hire one. There are some situations when it may be in your best interest to seek the services of a professional, and a website of generic templates won’t help you with complicated issues.
Basic Requirements of a Washington State Will
Whether you get help from an attorney or not, there are a few conditions that must be met for a will to be considered valid in Washington. If these requirements aren’t met, you risk that your estate will be handled under Washington’s intestate succession laws, regardless of your final wishes. Here are some common questions you may have when making a will for the first time:
- Can my will be typed, written, or spoken?
To be fully considered by the court, your will must be either typed or in handwriting. If not, severe restrictions are imposed on the ability to gift assets to others. A spoken will (formally called a nuncupative will) generally won’t be accepted unless specific criteria are met, including two witnesses who can provide proof that they heard the testator’s statements. Even with this proof, the spoken will is restricted to personal property not to exceed $1,000. Real estate may not be transferred by a nuncupative will at all, and nuncupative wills are able to be challenged by a surviving widow or heir. A written will (preferably typed) is best in almost every circumstance.
- Can anyone be a witness to my will?
Most people know that you must sign and date your will in front of two witnesses, but there are some conditions to consider. For instance, when you choose your witnesses, it’s strongly recommended that you do not use a beneficiary as a witness, especially if you think your will could be contested. The ideal witnesses have no interest in your estate and are not related to you, as this prevents conflict-of-interest disputes later. Your witnesses do not have to have read or otherwise be aware of the contents of the will at all, so your confidentiality can be maintained.
- Does my will need to be notarized?
A frequent misconception is that you need to have your will notarized, but notary service is not legally required for a will to be valid. However, a notary can help you make your will “self-proving.” With a self-proving will, the probate court (through which all wills must be filed) won’t have to take the time to contact the witnesses and verify their identities, which can speed up the probate process for your heirs.
The witnesses should sign and date the will after you. If you’re physically unable to sign the will, someone else may do it for you, but you must specifically instruct them to do so in front of your chosen witnesses.
When to Get Legal Help With a Will
If you have many potential beneficiaries and expect that there could be a conflict over inheritances, an estate planning attorney can help you lock down the legal language you need to make sure your last wishes are followed. Disinheriting a child or a spouse can be legally tricky, too, requiring careful wording to ensure your needs are met.
For a basic estate with few assets, a sole beneficiary, and no debts, a simple will may be the way to go. You can potentially save money, provided that the will is executed correctly. However, when you have a lifetime’s worth of assets that you want to ensure are passed on to your heirs in the way that you’d like, a one-size-fits-all downloaded form likely isn’t going to provide the security you’re looking for to protect your family when you’re gone.
An experienced estate planning attorney will work with you to create the perfect plan, which may include a will, living trusts, living wills, and powers of attorney, so that you can live your life now, knowing that tomorrow is secure for the ones you love most.
When you’re ready to talk about your estate plan, the attorneys at the Law Offices of Molly B. Kenny are here to help you prepare for your family’s future. Call us by phone, or email us to arrange a private consultation in our Bellevue office.
Do I need a lawyer to help me create my living will?
Thinking about the end of your life can be an emotional challenge, but it’s important to be prepared. Creating a living will can help your family should you become too sick or ill near the end of your life to make decisions for yourself. By making your wishes known ahead of time, you can remove a heavy burden from the shoulders of your loved ones, should you be incapacitated to illness, injury, or advanced age.
It’s important to know how to create a living will, what should go in it, and whether you should get legal help.
Your Living Will and Durable Power of Attorney
A living will is a legal document in a class called “advance directives.” There are several different types of advance directives recognized in the State of Washington. Two of the most important advance directives are:
- Health care directives. This is a formal name for what’s traditionally called a “living will.” This document defines the level of care you want to receive in the event of a catastrophic disability—when you are near death or rendered permanently unconscious, as determined by doctors.
- Durable powers of attorney. This document lets you name a specific person who can make healthcare decisions for you, and it ensures that your directions for care are followed.
When this document is a part of your estate plan, you can be assured that you have a comprehensive end-of-life plan available for your healthcare team and your family.
What Goes in a Living Will
As you write your living will, it’s important to consider both long-term and short-term issues you feel strongly about. It’s a time to consider the definition of a “meaningful quality of life” should you become so disabled you cannot communicate your wishes. Some of the issues that people think about include:
- Mechanical ventilation. If you can no longer breathe on your own, a ventilator can provide assistance.
- Dialysis. If your kidneys begin to fail, dialysis filters your blood to remove waste and control fluid buildup.
- Tube feeding and hydration. These options replace eating and drinking when you are unable to chew or swallow. You can be fed intravenously or through tubes placed into the stomach.
- Antibiotics and antiviral medications. Some people choose not to aggressively treat infections with medications at the end of their lives.
- Palliative care options. Take into consideration pain management and other quality-of-life issues. You may want to die in a home environment rather than at a hospital, and you may or may not want invasive or aggressive treatments for any secondary illnesses that arise.
Do I Need an Attorney for My Living Will?
There is no law that says that you need an attorney to create your living will, but there are legal rules to follow. According to the Washington State Attorney General, a living will must be signed and dated by you and two witnesses. Your witnesses must not be related to you, must not be a part of your healthcare team or an employee of a healthcare facility in which you are receiving care, and must not be a creditor or stand to gain or inherit anything from you once you pass. The law does not require your living will to be notarized, but it can make the process easier.
Hiring an attorney can be beneficial. He can review your existing living will to ensure that it is legally binding and enforceable, or he can help you draft a new one, so that your family is left with no questions. The peace of mind that comes with knowing that your final wishes will be carried out and your family has a written document to guide them can be an immense relief for everyone.
When you’re ready to prepare your living will, the Law Offices of Molly B. Kenny has over twenty years of experience helping families ensure that their final wishes will be respected and their loved ones will be taken care of with a good estate plan. Call us, or use the contact link on this page to arrange a private consultation in our Bellevue office today.
What are the pros and cons of probate?
There are many misconceptions about the probate process when someone dies, either with a will or without one (known as intestate.) However, Washington arguably has some of the most streamlined laws in the nation for probate, making it an easier process to manage—when it’s even necessary at all. It’s important to understand some key points about probate, why you may want to avoid it, and why in certain cases, you may not want to avoid it.
Advantages of the Probate Process
To understand why you might choose to go through the probate process, you should understand what probate means. Be aware that probate is not always required by Washington law. However, it is required that you file a will, if one exists, with the probate court. You will also be required to file probate if there is over $100,000 in personal property, or if there is real property (real estate) involved. Otherwise, there are situations in which probate may not be required at all.
One of the biggest advantages to probate can also be a disadvantage, in some cases. Probate is a matter of public record, and some may not want their personal information made public. However, when the estate left behind is complex and leaves a number of potential heirs, beneficiaries, and creditors with potential claims, going through the “public option” can be a safer choice. Probate ensures that the process is supervised by the court, and public disclosures are issued. This lets any party with a potential interest make a claim against the estate, but it limits the timeframe in which they have to do it. The downside is that the affairs of the estate are public record, including the contents of the will, which may not be desirable in every situation.
Disadvantages of Probate
One of the biggest disadvantages of probate is the amount of time that it takes for the legal process to complete. It’s a formal procedure that needs the help of a personal representative to shepherd the estate through the steps that are legally required, and there are specific timelines for each step. For instance, the amount of time that creditors have to file a claim is four months, during which time the assets of the estate are unavailable to beneficiaries. That can put heirs at a real disadvantage if they’re in desperate need of their inheritance.
Another disadvantage of probate is that it costs money. There are court and filing fees, the costs of publishing notices to creditors, and other expenses that can eat into the estate’s value, leaving less for beneficiaries. On top of the filing costs and other expenses, there may be payment to the personal representative of the estate, attorney fees, accounting services, and professional appraisers, too. When these services are necessary, it can be money well-spent, but all of it together can all chip away at the estate’s value, leaving less for the heirs and beneficiaries.
How to Avoid Probate
With good estate planning, many of the pitfalls of probate can be sidestepped. A living trust is an excellent tool for real property, cash or bank accounts, vehicles, and personal property to be transferred to beneficiaries neatly, quickly, and out of the public eye. Unlike a last will and testament, the contents of a living trust do not become public record, allowing heirs and beneficiaries to maintain their privacy. A community property agreement is another method that can be used to transfer real property directly to a surviving spouse without probate.
Get Legal Help With Your Estate Plan
When in doubt, the best move may be to contact a family law attorney with experience handling estate planning and probate. If you’re making your estate plan or have questions about your existing plan, your attorney can advise you about probate and how to take the correct measures, so your heirs will have an easier time receiving your assets when you’re gone. An attorney familiar with the probate process can also help you if you’re having trouble in the middle of the probate process and aren’t sure what to do next.
The Law Offices of Molly B. Kenny has been helping families across Washington secure their futures for over two decades, and we’re here to help if you have questions about your estate plan or the probate process. To arrange a private consultation in our Bellevue office, we can be reached by phone, or email us via the contact link on this page.
Do personal representatives get paid to administer an estate?
The issue of compensation for the personal representative of an estate can be tricky in the state of Washington. Yes, personal representatives can be paid for their time. Unlike other states such as California, there is no specific formula or chart embedded in the Washington state code that regulates personal representatives. Here’s what you need to know about being chosen as a personal representative and how personal representatives may be paid.
How Personal Representatives Get Paid in Washington
There are multiple ways that a personal representative can receive compensation for his time and effort in administering the estate of the deceased. Each has advantages and disadvantages that may be worth considering, both during estate planning and by the representative when called upon. These methods are:
- Being named in the will. Perhaps the simplest way to ensure a personal representative is paid is by naming him in the will, along with a dollar amount. Regardless of how much work the representative does, the amount named in the will is the compensation that he will receive. Alternatively, there may be an agreement to pay based on how long the service takes, with a final accounting (usually hourly) submitted at the end of the probate process.
- Letting the court decide. If the representative is not named in the will, or if he renounces the compensation stated in the will, the Revised Code of Washington allows for the representative to be compensated in a way that is “just and reasonable.” This method can also include payment for duties other than those required of a personal representative—for example, if the representative is also acting as an attorney or accountant for the estate.
- Renouncing payment entirely. It’s possible that the personal representative may refuse payment for his services. This option can actually be a good idea in some situations, particularly if the personal representative is also the only beneficiary of the estate. By choosing this method, however, there are potential tax benefits to the estate for paying compensation that can be missed out on, especially if the estate is larger.
Note that if the beneficiaries of the estate are unhappy with the amount of compensation paid to a representative, they may file an objection with the court.
If there is an objection, or the personal representative otherwise renounces payment stated in the will and asks the court to decide on a “just and reasonable” payment, the court will consider multiple factors to determine how much should be paid. These factors may include:
- How long it took to administer the estate
- The specific services provided to the estate
- How thoroughly the representative performed the services
The court will also consider the value of the estate and its assets, but this isn’t usually a primary consideration.
How Much Do Personal Representatives Really Make?
It can be tough to determine exactly how much a personal representative will be paid without knowing the details of the estate. As a “lay” representative, meaning someone who is not a professional, a common range of payment is between $15 to $50 per hour. If the personal representative has a full-time job, the court may use how much he earns as a guideline to how much should be awarded.
Get Legal Help With Your Estate
Estate and probate laws can be confusing, especially with the sudden and unexpected loss of a loved one. If you’ve been named as a personal representative and aren’t sure what your next steps should be, an estate planning and probate attorney can help you determine exactly what you need to do in order to close the estate.
The attorneys at The Law Offices of Molly B. Kenny have decades of experience helping families manage their estate plans and get through the probate process. We’d be glad to help you and your family, too. Call us, or use the contact form linked on this page to arrange a private consultation in our Bellevue offices to discuss your legal situation today.
What should I do when I’ve been served divorce papers?
Being served with divorce papers can be a jarring event, whether you were expecting it or not. You may be confused and uncertain about what your next steps should be. Knowing what to do after you’ve received a petition for divorce can help alleviate some of the stress and worry about how to proceed.
What Does Being Served Mean?
When someone initiates a legal complaint against you, such as a lawsuit or a divorce, the act of delivering the paperwork to you is formally known as “service of process.” In the state of Washington, there are certain rules over who may serve legal papers, but it’s most common that a private fee-based process server is used or someone from the county sheriff’s office.
When served paperwork for a divorce, you’re actually receiving the following two documents:
- The Summons. A summons is the legal document that formally tells you there is a legal action in place against you and grants the court the power to hear the case. The form contains information specific to your case, including the case number and the time in which you have to respond.
- Petition for Dissolution of Divorce. The petition will include information such as the name the people involved in the complaint (you and your spouse), the legal claim being made, and the desired outcome or relief that your spouse is asking for, including any demands for specific assets and alimony. It also should make clear the consequences for not responding in a timely fashion.
Even though it may be difficult, take the time to read through the papers, so you understand the demands of your partner. Then contact a divorce attorney who can answer any questions you have about the process and help you make your next move.
Can I Refuse Service?
Refusing service is almost always counterproductive and will likely hurt your case. Washington also makes it very easy for papers to be served, so you won’t be able to avoid them forever. Even if you refuse to take the papers from the hands of a process server, the fact that you have been verbally notified of service is usually enough for the state of Washington to allow the petition to proceed, with or without your involvement. Even if you’re actively evading the process servers, the court may opt to allow your spouse to instead file service through alternative methods, including by mail or even in the newspaper. Choosing not to participate in the legal process by avoiding service will likely result in a default judgement against you. This means that the demands of your spouse may be fully granted by the court and will be legally enforceable, whether you like it or not.
How Long Do I Have to Respond?
In the state of Washington, you typically have 20 days to reply to the petition and summons with a legal answer. The clock begins from the date you received service. However, it’s always wise to read the paperwork you receive thoroughly, as it should state the legal timeframe that you have to respond. Your attorney will help you begin your legal response immediately to make sure that you stay within the specified deadline.
What’s in a Legal Answer to a Divorce Petition?
Your legal answer is an acknowledgement that you received the divorce petition (and the summons) as well as whether you agree with the terms and conditions proposed by your spouse. You’ll address each demand, paragraph by paragraph. This is often done with a simple list of checkboxes, indicating your acceptance or denial, or a request for further information before you make a decision. You will also need to make a brief supporting statement explaining your reasons for each demand that you deny, as well as specify any counter-demands that you have.
Get Legal Help With Your Divorce
Some people try to address the divorce process alone, but a family lawyer can help you through it. She can answer your questions, help you with your response, and see you through trial, if your divorce ends up contested.
If you’ve been served divorce papers and don’t know where to turn, contact the Law Offices of Molly B. Kenny. Call or use the contact form to schedule a private consultation in our Bellevue office today.
How do I revoke a will in Washington?
When your estate plan includes a will, it’s important to keep it updated regularly, especially after major life events such as marriages, divorces, births or adoptions, or the gain or loss of substantial assets or property. To invalidate your old will and ensure that your new one takes precedence, you need to revoke your old will.
Revoking Your Will in the State of Washington
Perhaps the most direct way to revoke your will is by destroying the document itself. The Revised Code of Washington (RCW 11.12.040) makes it clear that a “burnt, torn, canceled, obliterated, or destroyed” will is no longer considered valid. It’s important to know that the revocation of the will must be your intent when you damage or destroy it, so accidentally damaging your will without meaning to revoke the intent of the document doesn’t automatically invalidate your wishes.
If you are unable to physically perform the act of destroying the old will yourself, you may ask someone else to do it for you. However, two witnesses are necessary for the destruction to be considered a valid revocation. Your witnesses must be able to attest that you directed someone to physically evoke the will, as well as to the “facts of the injury or destruction,” usually meaning witnessing the act itself.
Other Ways to Revoke Your Will
Physically destroying your will is a good way to make it clear that the terms and provisions it contains no longer apply. However, your will does not have to be physically destroyed in order to be revoked. The simplest way for you to revoke your will is to simply create a new will with the changes that reflect your current estate planning wishes. The fact that the new will exists, and is inconsistent with the older will, automatically revokes the older will. A statement in your new will that explicitly revokes the old will is probably a good idea, too, but it’s not necessary. As long as your new will contains changes (and is executed properly, with a later date) the old will is no longer valid.
Revoking a Will by Marriage
All or part of your will may be automatically revoked by marriage, unless you make specific provisions to avoid this. Marriage is a major life event that should always trigger a review of your estate plan. When you get married and don’t update your will, the court will assume that you didn’t mean to exclude your new spouse. When you die, he will receive your portion of any community property, as well as half (or more) of your separate property, depending on whether you left behind any other heirs who would inherit, following the state’s rules of intestate succession.
It may be possible to contest the distribution of your assets to your spouse by attempting to preserve your pre-marriage will, but it can be a difficult legal battle. The contesting party (such as your executor) will have to prove to the court that you did not intend to leave anything for your spouse, which is an expensive and time-consuming process.
Revoking a Will by Divorce
Just as marriage may automatically revoke your will, a divorce or annulment can affect your will, too. Unless you specifically state otherwise, any and all provisions that provide “interest or power” to your ex will be rendered invalid.
Revoking Codicils to Your Will
If you have any codicils to your will, they will also be automatically revoked along with the will, unless you make it clear that this is not your intent. A codicil is simply a document that modifies your will, without the need to formally execute an entirely new will, and it is usually kept in the same place that you keep your will.
Get Legal Help With Your Estate Plan
If you have any questions about creating a new will or revoking an old one, an estate planning and probate attorney at the Law Offices of Molly B. Kenny can answer all of your questions. To arrange a private consultation in our Bellevue office, call or email us today.
Can I write my own prenuptial agreement?
When a couple is considering marriage and there are considerable assets involved, the thought of a prenuptial agreement may seem prudent. A prenup is a contract between two would-be marriage partners that determines how assets will be divided in the event of divorce or death of one partner. There are many websites that offer cheap or free “prenuptial agreements” for download, leading people to think that a prenup is a simple document that can be prepared without legal help. However, here’s what you need to know about creating a legal prenuptial agreement for your marriage.
Washington State Prenuptial Agreements Are Complex Legal Documents
Prenuptials are, at their heart, a type of contract like any other. However, in order to be considered valid and legally enforceable, certain requirements need to be met. The courts generally take a dim view of any document that forces a person to sign away rights that have already been granted by the law. That’s why it’s important not only to have legal representation, but for each partner to actually have separate legal representation when drafting a prenup. You may even enlist the help of a professional mediator to help you negotiate the terms of your prenuptial agreement together.
Your attorneys will help the two of you work out an agreement and draft a prenup document that is agreeable and fair to both parties. Some of the most common provisions addressed in a prenup include:
- How assets are divided. Asset division will help determine which assets will be separate or non-marital property and stay with the original owner. In order for this to be valid, a prenup typically requires full disclosure of assets from each partner. If any assets are hidden at this point, it can invalidate some or all of the agreement.
- Alimony. In the event of divorce, spousal maintenance can be agreed on ahead of time. For example, this is typically used to protect the rights of one spouse who is married to a high-earning partner but stays at home to take care of the children.
- Financial responsibilities. A prenup may lay out certain financial responsibilities for each partner during the marriage, with penalties if these responsibilities aren’t met.
- Inheritance. A prenup can allow certain assets to pass to children instead of a spouse in the event of death. This may be especially important when there are children from a previous marriage to consider.
It’s important to note that child support and child custody are not included in this provisions list because neither are valid items for a prenuptial agreement Your prenup may also include a termination of end-of-contract clause that puts a time limit on the terms of the agreement. After this time has passed, the prenup will no longer be in effect. If a divorce happens after this time, regular state laws on asset division will be used.
Invalidating a Prenuptial Agreement
When the court is considering whether or not your prenuptial agreement is valid, it will look at a few different factors. The court may invalidate a prenup for the following reasons:
- Technical errors. If your prenuptial isn’t completed to legal standards and is riddled with mistakes, it’s not likely to be enforceable.
- No legal representation. If one partner doesn’t have an attorney to review the document and protect his rights, the court may invalidate the agreement.
- Coercion. Being forced into a contract, whether by physical, verbal, or emotional force or abuse, is not considered legally binding, and the prenup will be invalid.
- Disproportionate terms. Although the dollar amounts don’t have to be equal, when the agreement is severely in favor of one partner at the expense of the other, the court will not uphold the agreement. Prenups should never leave one partner destitute.
While you can download generic prenuptial forms from many sites on the internet, only an attorney who knows your local and state laws will be able to help you and your partner with an agreement that’s both fair and will stand up to legal scrutiny.
Get Help With Your Prenuptial Agreement
Have you got questions about your existing prenuptial agreement, or do you need help creating a new one? If so, the Law Offices of Molly B. Kenny would like to help you. Call or email us today to arrange a private consultation in our Bellevue office.
How does a no-fault divorce impact the way property is divided?
All states now recognize some form of no-fault divorce, although some also maintain fault-based divorces as a legal option. However, Washington is considered a “pure” no-fault state. This means, you don’t need a reason to file for divorce other than that the marriage is “irretrievably broken.”
Courts in Washington do not need, and will not consider, any sort of accusation of wrongdoing by a spouse when considering the petition for divorce at all. Pure no-fault means that Washington only recognizes no-fault divorces. The positive aspect is that unlike a traditional “fault” divorce, either party can file for divorce at any time without proof of wrongdoing by a partner. As long as the correct legal procedures are followed during the divorce process, the court will grant the dissolution of marriage, regardless of what the other partner claims.
How Assets Are Divided in a Washington Divorce
Washington is a community property state, which means that generally, any assets or debts that occurred after the date of marriage are owned equally by both parties. Any assets or debts that belonged to an individual before the marriage are considered separate property that still belongs only to the original owner.
You may be able to negotiate an agreement with your spouse with the specifics of property ownership and submit it to the court. However, if negotiations fail, the court will step in to help take care of it.
When assets are split by the court, community property is typically divided equally between partners, including assets as well as debts. However, in cases where a fifty-fifty division is unfair or unwarranted, the court has the legal latitude to make a different arrangement. The Revised Code of Washington (RCW 26.09.080) states that the court will make a decision that is “just and equitable” and balance the financial situation of each divorcing spouse, but that doesn’t necessarily mean equal in dollar amounts. The court will make its decision based on the following factors:
- The nature and extent of both community and separate property
- The length of the marriage
- The financial situation of each spouse after assets are divided
The court may consider other factors as well, depending on the specific circumstances of your divorce. In certain situations, the court may even include separate property in its decision, although this is relatively rare—separate property usually stays with the original owner. Inheritances or gifts given solely to one partner also remain with that partner, as well, although there are exceptions. When separate property has been “commingled” with community property such that the two become indistinguishable, the court will consider the separate property as community property for purposes of asset division.
For shorter-lived marriages, the court will look less at an equal division of assets and more at putting each partner back in a financial situation that’s similar to the way things were before the marriage. However, since Washington is a pure no-fault state, the one thing the court will not consider is marital misconduct during asset division.
We Can Help You
Before the court must step in and guide asset division, you may consider enlisting the services of a divorce mediator to help you. If you and your spouse can come to a mutual agreement about asset division outside the courtroom, the process can be much faster, and it will save money, too.
Do you have questions about asset division during your divorce, mediation, or another divorce-related issue and need legal help? The attorneys at The Law Offices of Molly B. Kenny are here for you, and we have decades of experience handling cases like these. Reach out today by calling us, or click the contact link on this page to arrange a private consultation in our Bellevue office.
Do all assets go through probate in Washington?
When someone dies in Washington, the legal process for his final legal and financial affairs are taken care of through the probate court. The probate court validates wills and confirms that personal representatives (sometimes called “executors”) named in the will agree to accept the job of managing the estate.
If the person has died intestate, which means without a will, the probate court will generally also handle who receives the assets and property of the deceased, according to the “rules of secession” set out by state law.
Regardless of whether or not there’s a will, during the probate process, assets are held and will not be distributed to beneficiaries until all other debts of the estate are paid. This can take months—or even years, if the estate is legally contested. Legal fees during the probate process can also reduce the overall value of the estate, resulting in smaller inheritances for beneficiaries.
As a result, a common question that attorneys are asked is whether or not all assets have to go through probate, so beneficiaries can receive assets earlier and without the extra time and expense of court. In the state of Washington, the answer is no. Not all assets have to go through probate, and with good estate planning, a great many assets can avoid probate.
Non-Probate Assets in the State of Washington
There are several types of assets that can avoid the probate process and be directly transferred to a beneficiary, even if there is no comprehensive estate plan. Some examples of these assets include the following:
- Personal vehicles. If the car was owned in joint tenancy with right of survivorship, the title can pass directly to the co-owner of the vehicle.
- Other property held in joint tenancy. If a house is owned jointly between a couple with a right of survivorship, and one partner dies, the surviving spouse will be able to receive the other half of the ownership interest in the house without probate.
- Payable-on-death bank accounts. Sometimes called a POD account or an account that’s “in trust” (such as an account held for a child of the deceased), the contents of these types of accounts can be transferred directly to their new owners.
- Transfer-on-death securities. TOD security accounts also have named beneficiaries, so they are considered non-probate assets.
- Designated beneficiary accounts. Life insurance policies and retirement accounts (such as IRAs or Keogh Plans) already have designated beneficiaries, so the court allows these assets to be transferred directly upon death.
- Community property. If the deceased has a Community Property Agreement in place, this property can go directly to the surviving spouse. If there is no CPA, then community property typically must go through probate before being distributed to the surviving spouse.
There are additional exemptions to the probate process that are based on the value of the estate. If the probate assets of an estate do not exceed $100,000 and the only assets are personal property, then a personal property affidavit may be all that’s required, and probate may be avoided entirely.
Other Exemptions to Probate
In Washington, certain small assets also may be considered non-probate, but only if there is no personal representative that has been or needs to be appointed. These types of assets may include:
- Bank accounts of up to $2,500
- Credit union accounts of up to $1,000
- Any remaining wages that haven’t yet been paid up to $2,500
- Unpaid social security benefits up to $1,000
- A car or a boat
One way to avoid probate is to place your assets in a living trust. This requires some legal forethought, but it can save your heirs and beneficiaries a lot of time and money and will ensure they receive a greater portion of the assets you leave behind.
If you have more questions about probate assets or how living trusts work and would like to talk to an attorney about your estate plan, the Law Offices of Molly B. Kenny would be glad to help you. Contact us by phone, or email to arrange a private consultation in our Bellevue office, and get started on an estate plan that’s right for you and your family.
What is community property in Washington State?
Many states follow “common law” rules to determine who owns assets or property after a marriage, but that’s not the case in the state of Washington. In Washington state (and eight other states, as well), “community property law” is used to determine property ownership after a marriage.
Community Property Law in the State of Washington
In Washington, typically all property or assets that belong to a person are called “separate property.” You may carry separate property with you into a marriage, and anything that was yours before will still belong entirely to you afterwards. Here are some examples of separate property:
- The balance of your bank account before marriage
- Property you owned before marriage
- Vehicles you owned before marriage
- Inheritances you received before marriage
- Any asset or property given to or inherited by just one spouse, even during marriage
However, once a marriage happens, the rules for future ownership change. Any money earned and items purchased by either spouse will become “community property” and belong to the marriage. That is, both partners have a fifty percent ownership claim. This can become particularly important during estate planning—or during a divorce, when community property is typically divided equally between the couple.
An exception to separate property is if you bring your separate property into a marriage and “commingle” it with community property. This means, it can no longer be identified as your separate property and has effectively become community property—so your spouse has a right to fifty percent.
Gifts or inheritances given only to one partner are another exception to community property—these typically remain separate property and belong only to the person who receives them.
What Is a Community Property Agreement?
A community property agreement (CPA) is a powerful estate planning tool available to any married couple. It is a legally binding agreement which can turn all property that you or your spouse own into community property, including what was once your separate property and any assets acquired during the marriage. The agreement may take effect immediately, or it may only be effective upon death of a spouse.
Why would anyone want to do this? The answer is usually to avoid probate court. Community property in the state of Washington automatically transfers to the surviving spouse without having to go through probate. If your assets and estate planning requirements are relatively simple, it can seem like a good idea; however, there are plenty of disadvantages that make CPAs unsuitable for many situations. Before you sign anything, you should definitely weigh the pros and cons of a CPA carefully.
If a CPA immediately converts all property into community property, the biggest concern is a divorce. If there is property that you would not wish your spouse to receive a share of during the asset division phase of divorce, a CPA is going to make that difficult. A CPA can only be revoked by mutual consent of both parties, so you’ll likely end up needing to negotiate with your spouse for the asset or property that you want.
Do I Need an Attorney to Create a CPA?
With the growth of the internet has come a proliferation of online legal assistance sites, many promising quick and modestly-priced downloads of “do it yourself” legal forms to save some money. However, these sites tend to offer only generic agreements that may not be right for every situation, and they offer no expert guidance or review of your estate plan to see how a CPA will fit in. Some may not even help your spouse avoid probate, which is the biggest advantage that a CPA can offer.
While finding certain forms online for simple legal matters may be fine for less complicated situations or smaller estates, the CPA is a complex document with long-term ramifications for your marriage and your estate plan. For example, a CPA will take priority over your will in nearly every situation, even if your will has very different wishes in it. Your attorney will help make sure your estate plan and your CPA are legally valid and contain no contradictions, and that it will protect you, your spouse, and your heirs.
Get Help With Your Community Property Agreement
When you’re ready to speak to a family law and estate planning attorney about your situation to discuss whether a CPA is right for you, the Law Offices of Molly B. Kenny can help. Our office is located conveniently in Bellevue, and we are available for private consultations.
Are there any benefits to being the first to file for divorce?
Even though your relationship has reached its end, you may be dragging your feet about being the first to file for divorce. You may have heard divorce horror stories from family or friends and are sitting on the fence, thinking that you should just wait for your partner to get the ball rolling. Maybe you think it’ll be easier if the paperwork is started by your partner first. Or maybe you’re just scared about the future.
For most divorces, there is little advantage to being the first to file, especially if you and your spouse both agree that the split is for the best. But if it could turn messy, there are a few advantages that make filing first worth thinking about.
Filing First Means Being Mentally and Financially Prepared
One of the big advantages to filing first is simply this: by taking the initiative, you are taking control of your life. It signals that you’re ready to move on, and you’re not going to wait around for your ex to make the first move. If your relationship has been a poor or abusive situation for you or the kids, it can be truly empowering to take the first step.
Filing first also means that you won’t be surprised or caught off guard by your spouse handing you the paperwork. You will have the time you need to think about your long-term legal strategy for the divorce process because you won’t need to scramble to meet a deadline to respond. You will also give yourself extra time to plan for any of the major life changes that a divorce can cause.
You Get to Speak First in Court
When you file for divorce first, you will be the first to present your case before the court. This means that the judge will get to hear you speak, listen to your side of the story, and look at any evidence you have before it’s your partner’s turn. Although the court will treat both parties equally in the eyes of the law, some people feel that this can help their case, as going first can be a confidence booster.
It May Mean a Financial Advantage
By being the first to file, you may be able to shorten the time that your ex has to try and hide any assets from the court. This can be a big help if you think he might try to deprive you of your fair share of community property. Vengeful spouses can sometimes try and drain joint bank accounts, sell property, or disappear with cash or other assets if they believe a divorce is coming. Make sure that you know the warning signs that your spouse may be hiding something from you, and speak to your attorney about it as soon as possible.
Being the first to file also means that you’ll have the time to put aside assets of your own in a legal, safe manner that ensures you’ll be able to support yourself adequately, pay for legal counsel, and cover any other expenses that may arise until the divorce is finalized.
Get Legal Help for Your Divorce
The biggest advantage of filing first may be that you’ll be able to take the time you need to find the right legal team to help you through your divorce. Your attorney will be your legal guide and support throughout the entire divorce process, so it’s worth spending a little time shopping around. Don’t be afraid to speak to more than one attorney or firm, and ask plenty of questions to make sure your lawyer will be a good fit for you and your situation.
The Law Offices of Molly B. Kenny serves clients of all kinds for their divorce and other family law needs. When you’re ready to talk to an experienced legal professional about your family situation, we would be honored to serve you. Please call us to arrange a consultation in our Bellevue office.
What is a transfer-on-death deed, and can it help me avoid probate?
A transfer-on-death (TOD) deed is a tool that has recently become available to Washington residents to assist with estate planning. It offers a quick and relatively painless way to transfer real property (such as a home) to a beneficiary once the owner passes away. But there are some issues to consider before deciding whether or not a TOD deed is right for your estate plan.
Transfer-on-Death Deeds in Washington State
A TOD deed, also called a beneficiary deed, is a legal method of property transfer first enacted by Washington State legislature on June 12, 2014. In general, a TOD deed allows a beneficiary to be assigned receipt of the deed to a piece of real estate upon the death of the original owner—without going through the probate process. For uncomplicated estates, this can save both the time and expense of probate court. There are some important requirements that must be met in order for a TOD deed to be valid:
- Testamentary capacity. A TOD deed has the same requirements of legal and mental capacity that comes with creating a will. That is, the person must be of sound mind and memory in order to make decisions about the disposition of his property.
- Properly recordable requirement. A TOD deed must contain the same information as any other properly recordable “inter vivos” deed—a transfer between living persons. In other words, a TOD deed must contain all of the necessary legal information that any other deed such as a quitclaim or warranty deed must have.
- Signed and notarized. A TOD deed must be properly signed and witnessed before a notary agent to be considered valid.
Once the basic legal requirements are met, a TOD deed must then be filed with the County Records Office in order to be valid. Once filed, it is then a “nontestamentary” document, which means that it does not require a will or probate court to take effect.
Weighing the Pros and Cons
A TOD deed can be a great tool for the uncomplicated estate plan, and there are other benefits along with avoiding probate. These benefits primarily involve retaining control over the property. The property owner (or grantor, in this case) is able to revoke the TOD deed at any time while he is alive, and the beneficiary has no rights or control over the property until the grantor passes away. The grantor also can (and should) make a list of alternate beneficiaries for the TOD deed, in case the primary beneficiary is unwilling or unable to assume control of the property when the time comes.
One downside to consider is that a TOD deed carries any mortgages, liens, taxes, or other claims that are associated with the property directly over to the new owner. If the property is in any way encumbered, this can leave the beneficiary saddled with unexpected debts if he accepts the deed. While probate court does take time and it costs the estate some money, the estate is bound to pay off creditors before distributing assets to beneficiaries named in a will or trust. This means, if the estate has other assets that can be used to pay off the debts on the property, the recipient may receive the property unencumbered by those debts, which can be a real gift.
A TOD deed can also get complicated with multiple beneficiaries. While you can choose multiple beneficiaries and each will receive an equal share, should one beneficiary pass away, he is removed from the TOD deed and the other beneficiaries receive equal shares of what’s left. There is no inheritance of a TOD deed claim. For example, if you have two children named in your TOD deed and one passes away before the other, the surviving child will receive the full share of the property. The children of the deceased (your grandchildren) will not be entitled to a share of the property. In cases like this, where you may want grandchildren or other family members to inherit, it’s best not to rely on a TOD deed, as it may not be able to reflect your full wishes adequately.
Get Help from an Estate Planning Attorney
You may want to spend some time considering whether a TOD deed is right for your estate plan. Your Bellevue estate planning attorney will be able to give you additional details and help you make the right decision to ensure that your family is taken care of when you’re gone.
If you’d like to talk to an estate planning attorney to find out more about TOD deeds, the Law Offices of Molly B. Kenny would be happy to answer any questions you have about your estate plan. Reach out to us at your convenience for a private consultation in our Bellevue law office.