What is a Probate?

After the passing of a loved one, you may find yourself overwhelmed by grief and how to handle their affairs. The estate process does not need to be this way; there are local legal professionals who are here to explain the process and assist you step-by-step to ultimately settle the affairs of your loved one.  

Our office finds many families simply confused by the language used in the estate administration process. Here, we cover probates – what is it? How does it function in the estate process? What should you and your family be prepared for?   

What is a Probate : The Basics  

A probate is the legal process by which a deceased person’s assets are transferred from their name to the name of the beneficiary who is now the owner. This legal process occurs whether a valid will exists or not. When there is a valid will in place, that will acts as a set of guiding instructions for a personal representative, sometimes known as the executor of the estate, and a court in the administration of the estate. If there is no valid will in place, Oregon law provides how assets will be distributed.   

Role of a Probate 

Assets that require a title to be transferred require a probate. This includes any real property, such as land and real estate, and financial assets, such as bank accounts and stocks. This allows creditors an opportunity to be paid and legal disputes to be settled before any assets are distributed.  

Personal representatives are named in a valid will. When there is no will, a probate begins when someone petitions the court to be named the personal representative. Beneficiaries are told that someone has petitioned for the role. Notice is also published to allow creditors to submit claims against the estate.      

Role of a Personal Representative 

First, the executor identifies all assets in the estate and files an inventory of these items and their approximate value with the court. Items to be sold are sold, debts are paid, and tax returns are filed. The representative also prepares a detailed accounting of the estate, which lays out all that’s occurred in the administration of the estate. After being filed with the court, this accounting is also given to the heirs and beneficiaries of the estate. When this accounting is approved by the court, assets can finally be distributed. The representative is entitled to a fee, based on a small percentage of the value of the estate, for this work.  

While probate lasts a minimum of four months, this process can last years depending on the assets of the estate and any issues that arise along the way. Each situation is unique. Consulting an attorney knowledgeable in estate planning and administration can aid the process. For more information, please call our office at (541) 963-3104 or contact us online at baumsmith.com.   

The content of this blog is intended to be general and informational in nature. It is advertising material and is not intended to be legal advice to or for any particular person, case, or circumstance. Every matter is different, and you should consult an attorney if you have any questions about your situation  

What Should I Do If I’m Being Sued?

After receiving a demand letter or being served with a civil lawsuit, you may be feeling anxious, confused, or fearful about the future and how to proceed. First, know that you are not alone. Second, know that there are knowledgeable professionals who can guide you through the process and point you to valuable resources. Simple preparation can help you determine how best to proceed after the initial shock.

Read the Letter or Lawsuit Carefully

Whether the document you’ve been given is threatening a lawsuit or is formally announcing one, your first step should be to read the document carefully, with a pen in hand. As you read, write down any comments you may have in the margins. Additionally, write down or highlight any questions you have about the document or language. You should research those questions or bring them to an attorney who is experienced in civil litigation. Be sure to highlight any stated deadlines. Lastly, ask yourself: what does the other side really want from me?

Gather Related Documents

After reading the letter or lawsuit, gather any documentation related to the dispute. These documents come in many forms and may include mail, emails, or text messages you’ve received as well as social media posts and photographs. Text messages should be transferred from your phone into a format that is easily sent to an attorney or insurance company if the need arises. Gather any documentation or evidence that you think might be related to your dispute. It is always better to have gathered too much information than not enough.

Call Your Insurance Representative

Most people only think of calling their insurance agency in the event of a car accident or bodily injury, but your insurance agent has probably sold you insurance coverage for more than those kinds of incidents. It is never a bad idea to call your insurance agent or your insurance company’s claims department to check your coverage. If you are covered, the insurance company may defend you in your dispute or cover your legal fees.

Contact an Experienced Civil Litigation Attorney at Baum Smith

To your initial consultation, bring the demand letter or lawsuit you received, your questions, and all the documentation you’ve gathered. Though every case is unique, an experienced attorney can give you an idea about how your case may play out in court. They may also guide you through the process of settling or defending your case.

It is important to act quickly. Do not wait for an approaching deadline to consult an attorney.  For more information, please call our office at (541) 963-3104 or contact us online at baumsmith.com.

The content of this blog is intended to be general and informational in nature. It is advertising material and is not intended to be legal advice to or for any particular person, case, or circumstance. Every matter is different, and you should consult an attorney if you have any questions about your situation.

Estate Planning During COVID-19

Due to the Covid-19 pandemic a lot of my clients are asking about their estate planning. One question I hear repeatedly is “do I need a will?” The answer depends on individual circumstances, family dynamics, personal preferences, and a host of other issues. That said, the answer is a definite “yes” if one of the following circumstances applies to you.  

You Have Minor Children 

A will allows you to name a guardian for your children should anything happen to you. Also, you can name a conservator to manage assets on your child’s behalf until they are old enough to manage those assets independently. You may name the same individual to serve as both guardian and asset manager or choose to separate those responsibilities. Ultimately, whether someone will be appointed as guardian or conservator is decided by the court but usually the court will appoint the person you name. 

Finally, you may determine the age and circumstances under which assets are distributed to your child.  

You Would Like to Choose How Your Assets are Divided 

With no will in place, Oregon State law determines how your assets will be distributed. This default, known as intestate law, rules that if you are married, all asset will be given to your spouse first. If you are unmarried, assets will be given to your children. If you are unmarried and do not have children, assets will be given to your surviving parents, and so on. If you desire for your assets to be distributed in any way that is different than these default rules, you may consider creating a will.  

You Would Like to Select the Executor of Your Estate 

These default rules also state that, with no will in place, Oregon courts will decide who will act as your personal representative, or the executor of your estate. Depending on your circumstances or family dynamic, you may believe that some individuals in your family may be better suited to handle your affairs then others. In a will, you may appoint a personal representative.  

You or Your Spouse Were Previously Married 

Intestate laws do not include stepchildren as beneficiaries of their step-parents’ estates. If you would like to provide for any stepchildren, you will need to stipulate that in a will to avoid them being denied assets from your estate.  

Of course, every situation and family are different. While these are rough guidelines, you will need to consult a knowledgeable attorney at Baum Smith in order to truly determine whether you need a will. While our office operations are temporarily modified under Governor Brown’s executive order, we are still accepting new clients. For more information or to schedule an appointment, please call our office at (541) 963-3104 or contact us online at baumsmith.com. 

The content of this blog is intended to be general and informational in nature. It is advertising material and is not intended to be legal advice to or for any particular person, case, or circumstance. Every matter is different, and you should consult an attorney if you have any questions about your situation  

Oregon Employers and Compliance with COVID-19 Restrictions

A couple of things for Oregon employers and employees to keep in mind.

First –

All employees get sick time. If you have 10 or more employees sick time must be paid.

1 hour of sick time accrues for every 30 hours worked.

Employees can use sick time to care for themselves, family members or for visits to medical professionals. Sick time can also be used if a parent needs to care for children affected by a school closure.

Second –

Many businesses will really test working from home over the next month. It’s important for employers to have written “device” and “work from home” policies and a “work from home” plan for affected employees. These policies keep productivity up and prevent loss of data.

If you or your employees are working from home consider having a written policy that addresses (1) software and equipment, (2) daily work schedules and systems of accountability, and (3) preventing unauthorized access to confidential information.

Employers should consider having their employees email a work from home plan addressing these issues.

A device policy creates rules for employees to use their own device for work purposes. A device policy makes clear (1) what applications employees should use when working with client or customer information, and (2) where to store client and customer information. A device policy helps employees prevent data theft or other security issues.

Third –

Governor Brown issued an executive order today. I’ve attached a link to the order to this post.

The Governor clearly has the statutory authority to issue this order. Anyone knowingly violating the order risks being charged with a Class C misdemeanor crime. Additionally, if the state issues a notice of violation of public health law the violator will be subject to penalties of up to $500 per day the violation continues.

Some people are reasonably concerned about whether Governor Brown’s order violates their constitutional rights.

I do not think so.

Under the 5th and 14th Amendments to the United States Constitution public health regulations that are “arbitrary, oppressive and unreasonable” are unconstitutional. Governor Brown’s order does not appear arbitrary, oppressive and unreasonable under the circumstances.

In 1900 a court ruled against the city of San Francisco when it tried to inoculate and then quarantine Chinese residents against bubonic plague when the court doubted plague conditions existed. I could not find that any Oregon courts have ever addressed this issue.

I am advising clients to review Governor Brown’s order carefully and comply. https://www.oregon.gov/…/Docu…/executive_orders/eo_20-07.pdf

B2H : What is Eminent Domain?

The Boardman to Hemingway transmission line, or B2H, promises a 500-kilovolt transmission line that, when completed, will run from Boardman, Oregon to Melba, Idaho. Jointly constructed, operated, and maintained by the Idaho Power Administration and the Bonneville Power Administration, the project has faced much opposition from private property owners who find that their land will be condemned, or taken for use in this project.

What is Eminent Domain?

Eminent domain is the power of the government to take, or “condemn,” private property for public use. Public utility companies, even if they are operated by private corporations, may also take your property for public use. Any agency or company taking property under eminent domain is called the “condemning agency.”

To condemn a property under eminent domain, two conditions must be met. First, the condemned property must be used to benefit the public. Second, the condemning agency must pay just compensation to the landowner.

What is a Public Use?

Condemned property must be used to benefit the public. Common examples are road expansions, bridges and utility lines both above and below ground.

It is usually easy for the condemning agency to meet the public use requirement. The legislature first defines “public use” and determines which agencies or companies have the ability to take property for public use. A condemning agency does not have to choose a design or route for their project that has the lowest impact on property owners.

What is Just Compensation?

“Just compensation” is the fair market value of the property being taken by the condemning agency. Simply stated, this is how much money you will be paid for your property. The requirement for “just compensation” is in the United Constitution: “…nor shall private property be taken for public use, without just compensation.”

People rarely agree on the “fair market value” of real estate and how much your remaining property’s value is worth after condemnation.

To determine the value of your property, the condemning agency’s own appraiser will inspect the property and produce a report. The condemning agency will then make an initial offer based on that report. The condemning agency has an interest in paying you as little as possible; their initial offer may not make you whole. While it is not likely to prevent an agency from taking your land for a roadway or utility line such as B2H. However, you can take steps to ensure that you are paid fairly for your property.

Consult an Attorney at Baum Smith

We work for owners of property affected by condemnation. “Just compensation” becomes whatever we negotiate with the condemning agency or what is determined by a jury of your peers during a trial. We work with you to hire a third-party appraiser who is experienced in land condemnation and eminent domain. This is not the same appraiser who valued your home when you purchased it; the appraiser needed depends on a variety of factors, such as how your land is currently being used and how it will be utilized after condemnation. We are your advocate with the condemnation agency, the court and the jury. We help people receive just compensation with their land is taken.

For more information or to schedule an appointment with one of our attorneys, please call our office at (541) 963-3104 or contact us online at baumsmith.com.  

The content of this blog is intended to be general and informational in nature. It is advertising material and is not intended to be legal advice to or for any particular person, case, or circumstance. Every matter is different, and you should consult an attorney if you have any questions about your situation