While your loved one becomes older, and later pass away, you can be faced with numerous legal issues to deal with on his/her behalf. Typically you will require a Probate Attorney to handle the legal issues of a will or the estate. However, we also act as an Elder Care Attorney in the case of living vulnerable adults.
The discussion below addresses some of those legal issues. Each of them requires the filing of a Superior Court case to address them.
An Elder Law Attorney for Protection For Vulnerable Adults
We have read in the news many instances of abuse of the elderly, particularly financially as they are taken advantage of by operators, schemes and even their own family to rob their estate of assets. Many elderly people have been abused and left financially ruined by some of these activities. If you have an elderly relative, parent or even a friend that you think is being mistreated or taken advantage of, here are some things and Elder Law Attorney can help you with.
Our Legislature has recognized that elderly persons can become vulnerable to abuse, neglect, financial exploitation, and/or abandonment by a family member, a care provider, or some other person. By statute, a Vulnerable Adult is defined as a person who:
- is 60 years of age or older who has the functional, mental, or physical inability to care for himself/herself,
- has been found to be incapacitated under the guardianship statute,
- has a developmental disability,
- is receiving services from a home health, hospice, or home care agency licensed or required to be licensed by the State,
- is receiving services from an individual provider, or
- self directs his/her own care and receives services from a personal aide.
If you are concerned that somebody is abusing, neglecting, financially exploiting, and/or abandoning an aging loved one (say, your 85-year-old mom), you may petition the court for a Vulnerable Adult Protection Order (VAPO) to be entered against the alleged wrongdoer. You are then the VAPO Petitioner. Your mom is the Alleged Vulnerable Adult. A hearing will be held on the merits of your VAPO Petition. Thereafter, if the court is persuaded that there is no merit to your case, the court will dismiss your VAPO Petition. On the other hand, if the court is persuaded that the alleged wrongdoer has abused, neglected, financially exploited, and/or abandoned your mom, the court will enter a VAPO Order Of Protection against that person. The VAPO Order Of Protection generally will order the wrongdoer to have no further contact with your mom and to have no further involvement in the affairs (including the financial affairs) of your mom. The court can make the VAPO effective for as long as it wants, even for several years.
An Elder Law Attorney Can Help You Set Up Guardianships for Protection of the Vulnerable
As an Elder Law Attorney, we have helped many clients set up guardianships to protect an elderly relative or parent.
Our Legislature has enacted statutes to implement a guardianship over persons who, because of physical or mental incapacities they have developed, no longer are capable of taking care of themselves and their affairs (including their financial affairs). In so doing, our Legislature has stated its intent, as follows:
It is the intent of the legislature to protect the liberty and autonomy of all people of this state, and to enable them to exercise their rights under the law to the maximum extent, consistent with the capacity of each person. The legislature recognizes that people with incapacities have unique abilities and needs, and that some people with incapacities cannot exercise their rights or provide for their basic needs without the help of a guardian. However, their liberty and autonomy should be restructured through the guardianship process only to the minimum extent necessary to adequately provide for their own health or safety, or to adequately manage their financial affairs.
If you are concerned that your aging adult loved one (say, your 85-year-old-dad) no longer is capable of taking care of himself or his affairs (including financial affairs), you may petition the court for a Guardianship over him. You are then the Guardianship Petitioner. Your dad is the Alleged Incapacitated Person. In your Guardianship Petition, you will identify whom you are asking the court to appoint as your dad’s guardian. That might be you, or somebody else.
The court will appoint a Guardian ad Litem (GAL) on behalf of your dad during the case. The GAL will perform an investigation by communicating with your dad, his doctor, his family members, and others. (As part of this process, your dad’s doctor must submit a report to the court, addressing several statutorily required factors about your dad’s medical (including mental) health.) After completing the investigation, the GAL will prepare a report for the court, recommending either for or against your proposed guardianship – focusing on what the GAL believes is in the objective best interests of your dad.
Aside from the court-appointed GAL, your dad is statutorily entitled to be represented by the attorney of his own choosing. Your dad’s attorney’s job is to endeavor to carry out the subjective wishes of your dad with respect to your proposed guardianship. That means that, of your dad is against your proposed guardianship being entered against him, his attorney must zealously try to fend off the guardianship.
In order to be appointed as your dad’s Guardian, the proposed Guardian must successfully complete some court-ordered guardianship training. A hearing will be held on the merits of your Guardianship Petition. Thereafter, if the court is persuaded that your dad does not need a guardianship, the court will dismiss your Guardianship Petition. On the other hand, if the court is persuaded that your dad does need a guardianship, the court will enter a Decree of Guardianship – therein declaring your dad to be incapacitated, appointing a Guardian for your dad, and setting forth the scope of the guardianship. Once the guardianship over your dad is approved by the court, the court retains jurisdiction over the guardianship case – and the Guardian has some ongoing duties to report and account to the court with respect to how the guardianship is going over time.
If the court enters a full guardianship – i.e., over both your dad’s estate (finances) and his person (all other aspects, including medical) – your dad no longer will be able to divorce, marry, remarry, vote, drive, and etc. Thereafter, your dad’s appointed Guardian will make all decisions on behalf of your dad.
A Probate Attorney for Probate Of A Decedent’s Estate
A decedent’s “estate” refers to the property/assets and debts he leaves behind at the time of his death. In general, the process of “probating” the decedent’s estate involves collecting the decedent’s assets of his Probate Estate, liquidation his liabilities (debts), paying his necessary taxes, and distributing his remaining assets, if any, to his legal heirs. Certain of the decedent’s assets pass to others automatically upon the decedent’s death, via a beneficiary designation (e.g., life insurance proceeds, some bank and investment accounts, IRAs, 401(k)’s, etc.). Such assets do not need to be probated, so they are referred to as being part of the decedent’s Non-Probate Estate. The assets which need to be probated are those assets which comprise the decedent’s Probate Estate. Essentially, the decedent’s Probate Estate consists of all of his assets which are not part of his Non-Probate Estate. There are 3 main types of probates you may be likely to be involved in. Any or all of these can be very involved, and thus the importance of a good Probate Attorney. Each type of probate is next discussed.
Testate Probate: “Testate” means “with a Will.” Thus, when a decedent dies with a valid Will in effect, the probate of his estate is referred to as a Testate Probate. A Testate Probate may be commenced by any person with a financial interest in the decedent’s estate. That is done by filing a Petition For An Order Establishing Probat Of Testate Estate (Probate Petition). The person commencing the case files the decedent’s Certificate of Death along with the Probate Petition. Then, the court is requested to officially appoint the Personal Representative of the decedent’s estate, who will manage the Testate Probate through completion. Usually, that is the Personal Representative named in the decedent’s Will.
When the court appoints the Personal Representative, it also issues Letters Testamentary (a single document). The Letters Testamentary is the court-signed document which authorizes the Personal Representative to “stand in the shoes” of the decedent, thereby enabling the Personal Representative to conduct business with others with respect to the decedent’s financial affairs, because the decedent no longer is alive to be able to do so himself. For example, at the end of the Testate Probate, if the decedent has real estate that must be transferred to another person’s ownership, that is accomplished via a Personal Representative’s Deed – wherein the Personal Representative signs as the grantor of the deed in place of the decedent.
Early in the Testate Probate process, the Personal Representative must notify all of the decedent’s creditors about his death. The decedent’s creditors have statutorily (short) mandated time periods during which to submit (to the Personal Representative) their claims of entitlement to payment from the decedent’s estate. Any creditors who do not submit their claims for payment on time are forever barred doing so. The Personal Representative must submit a Notice to Creditors directly to the Washington State (1) Department of Social and Health Services, Office of Financial Recovery and (2) Department of Revenue. If any other creditors are “reasonably ascertainable,” the Personal Representative must submit a Notice to Creditors directly to them, as well. For other (unknown or not reasonably ascertainable) creditors, the Personal Representative generally will publish the Notice to Creditors in the newspaper of general circulation in the county.
During the Testate Probate process, the Personal Representative must prepare an Inventory and Appraisement, in which all of the decedent’s assets and debts are accounted for – including both his Non-Probate Estate assets and his Probate Estate assets.
Once all of the Testate Probate issues have been resolved, it can be closed with the court. Closure of the Testate Probate involves effecting the transfer of all of the decedent’s property that remains after paying all of his required debts. Also, a tax return must be filed for the decedent with respect to the tax year in which the decedent died. The tax return is prepared at the behest of – then approved, signed, and submitted to the IRS by – the Personal Representative. Regardless of the type of probate you are involved in, a Probate Attorney can be a tremendous asset on your team.
Intestate Probate: “Intestate” means “without a Will.” Thus, when a decedent dies without a valid Will in effect, the probate of his estate is referred to as an Intestate Probate. An Intestate Probate is accomplished in the same manner as the Testate Probate described above. Some minor differences are as follows:
- In an Intestate Probate, the Probate Petition is called a Petition For An Order Establishing Probate Of Intestate Estate.
- Also, the person appointed to manage the decedent’s Intestate Probate is called the Administrator (rather than the Personal Representative).
- Also, the court issues Letters of Administration to the Administrator (rather than Letters Testamentary).
Small Estates – Disposition Of Property: A special statute pertains in the event that (1) the decedent’s estate is comprised solely of personal property (i.e., no real estate) and (2) the value of the decedent’s entire estate which is subject to probate (not including his surviving spouse’s community property interest in any assets in the decedent’s estate which are subject to probate), less liens and encumbrances, does not exceed one hundred thousand dollars ($100,000). In that event, the formal Testate Probate and Intestate Probate processes (whichever one otherwise would have been applicable) can be avoided.
Under this probate procedure, “personal property” is defined as “any tangible personal property, any instrument evidencing a debt, obligation, stock, chose in action, license or ownership, any debt, or any other intangible property.” That includes all personal property which is part of the decedent’s Probate Estate, e.g., vehicles, furniture, tools, clothing, jewelry, and etc. – and, very importantly, financial accounts which do not otherwise pass to others via a beneficiary designation (e.g., life insurance proceeds, some bank and investment accounts, IRAs, 401(k)’s, etc.). A “Successor” is defined as any person who is entitled to the claimed property pursuant to either (1) the decedent’s valid Will or (2) the intestate succession statute (whichever is applicable) – or by virtue of the person being the decedent’s’ surviving spouse having an interest in the community property which is co-owned by both the decedent and his spouse.
Here, the “probate” is accomplished merely by having the Successor(s) execute and file with the court an Affidavit Of Claiming Successor(s) For Delivery Of Property, as well as a copy of the decedent’s Certificate Of Death. Of course, the content of the Affidavit Of Claiming Successor(s) For Delivery Of Property must comply with the requirements of the statute. Then, in order for the Successor(s) to obtain possession and ownership of the decedent’s personal property, the Successor(s) must provide a certified copy of the Affidavit Of Claiming Successor(s) For Delivery Of Property to whomever has possession of the personal property (including a banking or investment company, in the case of financial accounts) – at which point the possessing person or institution must turn possession of the property over to the Successor(s). No other court involvement in involved with this probate process.
Trust And Estate Dispute Resolution Act (TEDRA)
TEDRA is a wonderful statute which, unfortunately, contains several ambiguities. Its purpose, as stated by our Legislature, is as follows:
The overall purpose of this chapter is to set forth generally applicable statutory provisions for the resolution of disputes and other matters involving trusts and estates in a single chapter under Title 11 RCW. The provisions are intended to provide nonjudicial methods for the resolution of matters, such as mediation, arbitration, and agreement. This chapter also provides for judicial resolution of disputes of other methods are unsuccessful.
Simply stated, TEDRA provides a mechanism for parties who have an interest – in Wills, Trusts, other estate-related issues, VAPO cases relating to Alleged Vulnerable Adults, guardianship cases relating to Alleged Incapacitated Person, and etc. – to get together to resolve those disputes in a full and final way.
TEDRA provides for an increasingly elevated level of controversy. So, the parties first may endeavor to resolve their disputes by agreement. That can be accomplished by them informally, or via a more formal mediation, wherein a selected Mediator meets with and tries to help the parties reach an agreement. If that doesn’t work, the parties next an invoke an arbitration, whereby a selected Arbitrator decides the outcome of the parties’ disputes. If any party is aggrieved by the Arbitrator’s decision, that party can move the case to resolution in court by a judge (or, possibly, a jury).
For example, perhaps the several beneficiaries named in a decedent’s Will want the decedent’s property to be distributed between them in a manner that is different than the decedent stated in his Will. Similarly, perhaps the decedent’s”heirs at law” (under the intestate succession statute, where the decedent died with no valid Will in effect) want the decedent’s property to be distributed between them in a manner that is different than the distribution scheme set forth in the intestate succession statute. In those events, e.g., short of timely and expensive litigation in court, TEDRA authorizes the parties to all reach an agreement about their wishes – and to file their TEDRA Agreement in the pending probate case. The Probate Court then will honor (be bound by) the terms of the parties valid TEDRA Agreement.
For another example, perhaps someone has filed a Guardianship Petition, with his aged father being the Alleged Incapacitated Person identified in the Petition, alleging that his sister and brother-in-law have financially exploited the aged father. In that event, too, short of timely and expensive litigation in court, TEDRA authorizes the parties to all reach an agreement fully resolving their differences – and to file their TEDRA Agreement in the pending guardianship case. The Guardianship Court then will honor (be bound by) the terms of the parties valid TEDRA Agreement.
TEDRA provides many, many opportunities to resolve what, quite often, are very complicated scenarios involving Wills, Trusts, and estates – in a way, hopefully, which enables the competing parties to avoid unwanted time and expense related to trial litigation.
Depending upon your situation, you can see why it is so important to have a good probate attorney or elder law attorney on your team when dealing with these types of complicated and important issues.
With our abundance of expertise with the elder law and probate issues, we will responsibly guide you through the entire process of resolving your case and its many issues.
Justice shouldn’t just be for the wealthy, justice was intended for everyone.
Our Tri-cities Probate & Elder Care attorneys service all areas of southeast Washington, including Kennewick, Pasco, Richland, and West Richland, as well as Benton and Franklin Counties. Similarly, our legal services are available to a all of Washington State.
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