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Why Do I Need An Estate Plan?

October 16, 2013 – “Why do I need an estate plan?” An estate plan gives you peace that your affairs are in order, reduces stress and uncertainty for your loved ones, and insures that your wishes are followed. An Estate Plan typically includes the following:

WILL/TRUST

This document designates who you want to inherit your property, what they are to receive, and who you want to administer your estate. Wills can also take care of other designations, such as burial requests.

A Will is important for parents with children. It can insure any funds a child inherits will be placed in trust until a certain age, while being used for living expenses. It can also allow parents to designate their recommended guardian subject to court approval.

POWER OF ATTORNEYS

The two most common types of Power of Attorney are Finances/Legal Matters and Health Care. These give authority to your designee to act on your behalf while you are alive.

Power of Attorneys are Durable or Limited. Durable gives your designee full control immediately. Limited limits when the document is in effect (hence the name), typically when the designator is incapacitated, and can limit what authority your designee has.

HEALTH CARE DIRECTIVES

This document gives direction about the type of medical treatment you want in certain circumstances. It allows you to inform medical providers and loved ones of your desires in the event you are unable to do so at the time medical decisions are being made.

COMMUNITY PROPERTY AGREEMENT

Typically, property a married couple acquires is considered community property, meaning each owns one-half of the property. A Community Property Agreement converts all property to community property, unless specified otherwise. It helps avoid a probate for a surviving spouse by passing all assets to the surviving spouse efficiently and inexpensively.

Estate plans are important to insure that you are taken care of through your life and that your estate is handled as you wish. At Hanis Irvine Prothero, we are committed to helping you prepare and understand these documents and other documents that may be beneficial to you and your loved ones as you plan for the future.

Estate Planning Attorney Patrick Hanis

phanis@hiplawfirm.com

253.520.5000

New RCW Allows Corrections to Will or Trust after a person dies

September 18, 2013 – In 2011, a new statute was passed that allows a will/trust, to be changed “even if unambiguous” so as to conform to the intention of the deceased if its shown a “mistake of fact or law” occurred. Changing a will or trust after someone dies may at first sound sinister or grounds for creating serious disputes. It is when misapplied! Fortunately, the statute requires that the mistake be proven by “clear, cogent, and convincing evidence.” What in the world does that mean? Well, it means it has to be evidence that is highly probable. It’s not the same level necessary to prove guilt in a criminal matter- “beyond a reasonable doubt”- but it’s the kind of evidence that is getting close to that standard. Recently, I tried a case in which this statute may have been addressed by our courts for the first time. Mom signed a will a few days before her death in 2012 leaving her estate equally to her children. After her death, one of the sons found a Will from 1998 that excluded one of her children who was included in the 2012 will. The son filed suit and alleged that his mom must have made a mistake because she forgot to exclude the brother, my client, from the new will like she did in the 1998 will. The court disagreed and ruled entirely in favor of my client. The court found that what mom may have wanted in 2012, could easily be different than what she wanted in 1998. Thus, a mistake was not proven. The lesson learned for me is that the mistake must be something more than simply a change in heart. In addition, the time period to look for a mistake is at the time the will is signed. Samples that might work in my mind- an attorney includes or excludes a provision that wasn’t discovered when the will was signed; a person incorrectly lists an account number or misidentifies a property; a sophisticated trust is created under a mistaken belief that without it a significant legal/tax consequence will result, which turns out to be untrue. In each case, we’d expect testimony and documents from lawyers, unbiased witnesses, real estate records, or similar proof that does not require one to try and guess what someone was thinking when they signed their will or trust. Whether or not I’m correct in my thinking will ultimately be determined by our courts. This statute is well intentioned and could be very useful in the right situation. However, as my client learned, it could also lead to litigation and require the assistance of our courts to resolve. If someone discovers a Will provision that they think may be in error, we now have the statutory authority to determine if it’s an error that can be appropriately corrected.

Patrick M. Hanis

phanis@hiplawfirm.com

253.520.5000

Cases Involving Microscopic Hair Analysis Under Review

August, 7 2013 – In an unprecedented agreement between the Department of Justice and the FBI and the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, more than 2000 criminal convictions based on microscopic hair analysis will be reviewed. This historic review has already found 27 death penalty cases in which FBI forensic experts may have provided exaggerated scientific testimony regarding hair analysis. Forensic DNA has proven that the “matches” declared between a suspect’s hair and hairs found in a crime scene investigation were significantly overstated and, in many cases, flat-out wrong. DOJ has agreed not to raise procedural objections, such as statute of limitations or appellate and procedural default, in response to petitions of defendants wrongfully convicted based upon exaggerated reports of matches in hair comparisons. The 2009 National Academy of Sciences Report on forensic science found microscopic hair analysis “highly unreliable.” The report was also highly critical of bitemark analysis, toolmark and firearm analysis, fingerprint analysis, and other disciplines that rely solely upon the subjective eye of the analyst.

“The government’s willingness to admit error and accept its duty to correct those errors in an extraordinarily large number of cases is truly unprecedented. It signals a new era in this country that values science and recognizes that truth and justice should triumph over procedural obstacles,” said Peter Neufeld, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “Unfortunately hair analysis is only one of many flawed forensic practices that are still used that pose the threat of infecting criminal trials across the nation. We need leadership in Washington to ensure scientific rigor and greater oversight over forensics to prevent these miscarriages of justice.”

It’s unfortunate this “junk” science was allowed into trials as evidence in the first place. Defense lawyers have been raising these complaints since the 70’s. However, with the 2009 NAS report, the weight of science has brought the FBI to this change in position. Credit must be given to the leaders in the Department of Justice and FBI for challenging their previous testimony and for actually pursuing justice in these cases. However, it must be noted that this would not have happened but for the insistence, persistence, and hard work of criminal defense lawyers, NACDL, and the Innocence Project.

“This review is an example of our judicial system at its best — prosecutors and defense lawyers working together to see that justice is done,” said David Koropp, an attorney working pro bono for the Innocence Project. “Determining whether erroneous forensic evidence may have been used in criminal cases is vital to maintaining the integrity of our criminal justice system. The FBI is to be commended for the leadership position it has taken to help ensure that only scientifically valid evidence is used to identify and convict criminal defendants.”

New Boating Under the Influence Law Increases Consequences

August 7, 2013 – No one likes drunk boaters. On top of sometimes being very obnoxious, they are always a threat to the pleasure and safety of other boaters and their guests. Too often we’ve heard of tragic accidents with serious injuries and fatalities cause by someone too intoxicated to be operating some fast-moving, two-ton watercraft.With all the people who own and operate boats in our local community, there is some very important news. The State Legislature revisited the State’s Boating Under the Influence (BUI) law, RCW 79A.60.040, and made some significant changes all boaters need to be aware of. The changes go into effect on July 28^th. With lots of hot, sunny, good-boating weather to come, it is smart to be aware of these changes.

Stiffer Consequences & New Marijuana Provision

It has previously been a misdemeanor if you are convicted of BUI, with a maximum penalty of up to 90 days in jail and a $1000 fine. The legislature increased the severity of the crime to a gross misdemeanor, just like a DUI, with a maximum penalty of 364 days in jail and a $5000 FINE.

BUI can be committed by operating a boat while your breath or blood alcohol content is .08 or higher. Like a DUI with marijuana, BUI can be committed by operating a boat while the THC concentration of 5.0 or higher. Also like a DUI, BUI can be committed if one is under the influence of, or affected by, intoxicating liquor, marijuana, or any other drug, or any combination thereof. It does not matter if the operator has a prescription for the drug they have taken.

Implied Consent

The new law also adds an “implied consent” provision. That means that if you operate a boat in Washington waters, you are giving your consent for law enforcement to obtain a sample of your breath or blood if they have reason to believe you may be operating a boat under the influence. You have the right to refuse such a test, but not without a price. The penalty for a refusal is a $1000 fine. Furthermore, your refusal may be used against you in a criminal trial as evidence of guilt.

Be Careful Out There

Drinking alcohol while a passenger in a boat is still allowed. Open containers of alcohol are still allowed in boats (not cars). But the person operating the boat must stay in control of his or her ability to operate the boat. And they must stay within the legal limits of consumption. I would advise that it probably won’t take much to raise the suspicion of law enforcement and bring on the request of a breath or blood test. I would also advise that the safest way to enjoy an afternoon of boating is to make sure you have a responsible, competent, sober designated boat operator. Although the temptation to join in the fun may be strong, a BUI, or even worse, an accident, will take that away, and potentially a lot more under the new law. My final bit of free legal advice – do NOT drink and operate a boat.

MARK W. PROTHERO