Ask the Expert - Meyer Law

Important changes affecting persons with a CDL

There have been some significant changes affecting people who hold a commercial drivers license (CDL), what are some of these changes?

One of the biggest changes involves keeping points off your license. Historically, someone who got a ticket could go through driver improvement school to keep the points off his/her license.

As of September 30th, that has changed. Now it doesn’t matter if a person is driving a commercial or non-commercial vehicle. Simply put, if you have a CDL and get a ticket, you will not be able to go through driver improvement school to keep the points off you license, even if the ticket you received was a result of driving your personal vehicle.

What about other ways to keep the points off your license, are those affected too?

Again, before September 30th a court could place a person on probation for a period of time, and assuming the person doesn’t get another ticket during the probation time, the ticket would not show up on his/her driving record.

After September 30th, that option is no longer available to the court. The statute reads that someone with a CDL cannot receive a deferred sentence or a suspended imposition of sentence, meaning probation, in exchange for keeping points off his/her record.

Do these changes affect someone needing a limited or hardship license to continue working?

Yes. Pursuant to Missouri law, a holder of CDL will no longer be entitled to receive a limited or hardship license for the purpose of operating a commercial motor vehicle, although the driver can still obtain a limited driving privilege for the purpose of operating a non-commercial vehicle, such as a personal car. But if a hardship is needed to operate a truck in the course of employment, for example, the driver will be unable to get a hardship for that purpose.

Further, a CDL holder receiving a DWI or an administrative suspension while driving a non-commercial vehicle will be facing the disqualification of his/her CDL privileges for one year if it is a first offense, with no limited driving privileges allowed. Obviously this will have a dramatic impact on people who rely on a CDL for employment.

Are there any other significant changes?

The final change I’ll talk about today is that the holder of a CDL will no longer be able to petition the court to expunge a ten (10) year old first conviction for a DWI. It won’t matter if the conviction was in a commercial or non-commercial vehicle. A person not holding a CDL still can petition to expunge a DWI under certain conditions, you just can’t if you have a CDL.

So, as you can see, persons holding a CDL are going to be encountering greater difficulties if they have traffic law violations, including alcohol related violations, than they have in the past.

The best advice is if you received a traffic ticket and you have a CDL, consult an attorney. He or she can guide you through this process of keeping the points off your license.

If people want more information where can they turn?

They are certainly welcome to contact me at 636-528-8518, or on the web at www.tmeyerlaw.com

Construction Litigation

There has been a new Senate Bill 168 passed which will take effect as of January 2006. So basically what is the change with respect to Senate Bill 168 where construction is concerned?

The main change is prior to a homeowner or homeowners association filing a claim in court against a contractor, the law sets forth requirements that the parties attempt to contact each other to give notice that there is a problem. The belief is sometimes suits are filed when the contractor claims he or she did not even know there was an issue with the structure, thereby causing considerable expense to each party when possibly the issue could have been worked out between the parties. The new bill also encourages construction claim mediation in which either party can request that they meet with a mediator. The mediator may or may not be an attorney, but is a person who has had specific training in construction mediation and can assist the parties in having a productive conversation about what a good solution may be.

What does this new Senate Bill mean for homeowners and homebuilders?

Once a homeowner or an entire homeowners association believes they have a claim arising from construction of their home or a substantial remodel of their home the claimant must serve the contractor with a written notice of claim of construction defects. The notice of claim shall state that the claimant believes there is a construction defect and must describe the defect in reasonable detail. The contractor then has 14 days after receipt of the notice to serve a written response on the claimant. The contractor’s response must state whether the contractor proposes to inspect the structure within a certain time frame and thereafter make an offer to remedy the defect, or the contractor can simply offer to settle the claim by a monetary payment or making some type of repairs without an actual inspection, or the contractor may simply reject the claim or fail to respond within 14 days.

What happens if the homeowner rejects the settlement offer or if the contractor rejects the claim or just does not respond?

It the contractor simply does not respond within 14 days or rejects the claim, the claimant can then proceed to court and file a lawsuit against the contractor just like the claimant would have done prior to January of 2006. If the homeowner rejects the settlement offer or inspection proposal of the contractor, then that homeowner has to provide a written notice of such rejection and explain why they are rejecting it within 30 days. Now if it’s an actual homeowners association that has rejected a settlement offer, that association must hold a meeting of the members and serve written notice of the meeting on each member giving the members the options available to address the defects and then after that meeting is held the homeowners association can then proceed to court.

Are there any exceptions to these new rules applying to construction litigation?

This process requiring that the claimant give notice prior to filing suit does not apply to small claims cases, which are typically cases asking for less than $3,000. It also does not apply to personal injury or wrongful death claims or instances where the contractor sues first and then the homeowner simply files a counter claim. If the contract between the homeowner and the contractor specified they would engage in binding arbitration, they must utilize that method rather than the notice requirements set out by Senate Bill 168. However, if the statute of limitations is about to expire such that the claimant only has a limited amount of time to file suit against the contractor, in that instance the claimant can proceed directly to court without giving the notices set out in Senate Bill 168.

What happens if the homeowner doesn’t give the new required notices but rather files a suit directly in court?

The homeowner’s claims would be barred if the court determines that the claim was for non-emergency repairs and the notices were not given. Therefore, if the homeowner has any opportunity to give the contractor written notice it would be a better course of action to do so prior to filing suit.

Do you think that mediation is a good alternative to construction litigation?

I think mediation is a great alternative to any litigation. I am an attorney at Mueller, Beck & Meyer in Troy, Missouri but I am also a mediator. Mediation offers the parties an opportunity in a mutual environment to really get across to the other party their view of the situation. In court proceedings, the parties are sharply limited on what they get to convey to the Court due to the rules of evidence that must be followed. Also, because mediation is not binding until a judge signs off on the same, the parties often feel more free to work together in giving concessions that will produce a win -- win situation for all parties involved. With litigation, your day in court is your one shot to get all you can, and your attorney’s job is to help you achieve that one self centered goal. In reality, there is more to win or lose in each case than money. There are usually feelings at stake, reputations and relationships, at a minimum. Mediation gives you a shot at preserving those types of intangibles as well as coming to an agreeable monetary settlement that benefits all parties involved.

Alternative Dispute Resolution: What is it, and how can it help me?

You often hear the phrase “alternative dispute resolution.” What does that mean?

Our legal system is perceived to resolve disputes by trial, but many cases are resolved prior to trial, or even prior to a lawsuit being filed. There are other processes other than trial to resolve disputes. These options are commonly referred to as alternative dispute resolutions, or ADR. There are a number of ADR processes, with mediation being the most common.

What is mediation?

Essentially it is a process in which a neutral third party, a mediator, assists the parties in exploring options for resolving their dispute. A mediator may be an attorney, but doesn’t have to be. It is usually an informal process with the parties or their attorneys presenting the highlights of their case. The focus in mediation isn’t necessarily who is right, but rather how can we resolve the dispute in a way that works for both parties.

What kinds of cases are appropriate for mediation?

Virtually any case can be mediated. It could be a dispute over a contract, or maybe a personal injury type of case, or even a domestic relations cases such as divorce. In fact in the 45th judicial circuit, which includes Lincoln and Pike Counties, there is a mandatory mediation process for all domestic cases involving children. In domestic cases, the parties meet with the mediator and try to resolve issues as to how best to parent their children, when each parent sees the children, and child support.

When is the time to use mediation?

It can be used at any time before trial. In fact, it can even be used before a case is filed. As a trained mediator myself, I have mediated a number of domestic cases before anything was filed. The result is that you may have an agreement between the parties before any thing is filed, and then it is a matter of just getting paperwork together and presenting it to the court for final approval.

What then are the benefits of mediation?

There are a number of benefits. First, it can be a cost savings. Litigation in a divorce, or any other kind of case, can be very expensive. Attorney fees can quickly rise into the thousands of dollars. Mediation, on the other hand, is relatively inexpensive. Usually the cost is less than $1000 in most domestic cases.

Second, mediation can resolve disputes amicably. After a typical divorce trial, the parties walk away hurt, angry or frustrated because they have just heard their spouse talk bad about them, perceive they have lost, or feel they haven’t been heard. They’ve heard their spouse telling the judge why he or she shouldn’t have the children or why they don’t deserve the marital home. In trial before a judge, there is one person sitting up there making the decision for you. That decision may be one that neither you or your spouse like. Litigation is about winning or losing, while mediation is about finding a good solution.

Third, mediation can resolve disputes quickly. While a typical divorce that has to be tried in front of a judge may take six months or longer due to judges and lawyers schedules, mediation can resolve disputes and finalize a case within a very short time frame.

So what if the parties try mediation and can’t reach a resolution, then what?

Sometimes the parties cannot reach an agreement. If that happens, then the case proceeds on to trial. It really doesn’t slow the process down. There are some cases that need to go in front of a judge for him or her to decide, and that’s ok. That is why we have our judicial system. Mediation isn’t for everyone. Some people need a judge to make that final decision for them.

What if a person changes his/her mind after reaching an agreement in mediation?

Mediation is non-binding. What this means is that is does not become final until a judge signs off on it. So if parties reach an agreement during mediation, they can change their mind up until it is finalized by a judge. While this happens, it is very rare.

If parties use mediation to resolve their dispute, do they need a lawyer?

If you are going to have it finalized by a judge, then yes you do need a lawyer to draft the paperwork, the settlement agreements, and the final orders or judgments for the judge to sign. There may be times where an agreement reached in mediation doesn’t need further judicial involvement, if that is the case, then a lawyer may not be necessary. One word of caution, though. I would always suggest talking to a lawyer to have your rights explained to you before finalizing any agreement you make in mediation.

If people want more information on mediation, where can they turn?

They are certainly welcome to contact me at 636-528-8518, or on the web at www.tmeyerlaw.com. Or if they want specific information regarding the mediation program in Lincoln and Pike counties, they can contact Charla Harbour at 636-528-6300.

Dissolution of Marriage

With various forms and tips available on the Internet as well as at office supply stores, could a person actually do their divorce on their own without the assistance of an attorney?

There is no requirement that a person hire an attorney to handle any legal matter, whether criminal or civil. An attorney is necessary to help you with a divorce proceeding, or as it is called now a dissolution of marriage, because there are many requirements that must be set forth in your dissolution petition and other paperwork. Each state has its own requirements as to what you must file to obtain a dissolution of marriage, and each judicial circuit can impose its own rules as well. Therefore, by the time you pay for a divorce kit, research what all needs to go into your paperwork and how exactly to get that filed, then actually do the work to prepare all the papers, you will have likely spent as much of your own time and money as you would have spent hiring an attorney. Further, if you do not move the dissolution of marriage along on a timely basis, the court will actually dismiss your case at some point for not following the time lines imposed. If the court dismisses your case, you will lose your filing fee which would have been approximately $180 in Lincoln County and possibly your service of process fee of approximately $50 if that had already been expended. Further, without having an attorney involved, you will not know your rights as to which property should remain your own separate property for any reason, your rights with respect to you and your spouse’s pensions, and the receipt and payment of alimony or child support.

What is the difference between a dissolution of marriage, an annulment, and a legal separation?

A dissolution of marriage requires the court to find that the marriage is irretrievably broken, meaning it’s over and you are not planning to reunite with your spouse under any circumstances. A legal separation requires that the court find that the marriage is not irretrievably broken, meaning there is some possibility that you and your spouse may actually reunite. Legal separations are used if a couple does not want to get a dissolution of their marriage for religious or moral reasons, or, it is often used if one spouse has deserted the other and the spouse who has been left behind does not want to be divorced but requires the financial support of the spouse who has left. A legal separation requires the same paperwork and same time line as a dissolution of marriage, and through a legal separation the court will still divide all property and award alimony and child support where proper. However, under legal separation, one spouse can still medically insure the other under their health plan or through their employer, the spouses can keep their vehicles insured under the same agency and policies, and one spouse can still inherit from the other spouse upon the death of the other spouse. An annulment can only be granted in limited circumstances such as if the parties lacked the ability to enter into a contract at the time of the marriage, such as if one or more of the parties was under the legal age to marry, or was otherwise incapacitated, or if the parties were too closely related by blood to have married per State Law. Other circumstances under which an annulment could be granted would include error, fraud, duress, or imperfect consent; however, these usually have to be an extreme situation such as you married someone not knowing that they had a terrible disease, or one party was threatened to complete the ceremony by force, or the like. It does not include situations where a party simply changed his or her mind the next day and does not wish to be married. Legal annulments are pretty rare, although the Catholic church has it’s own procedure for declaring an annulment for its own Church purposes.

What is the approximate time line to get a dissolution of marriage, legal separation or an annulment?

The shortest time to get a divorce, annulment or separation is 31 days from the date you serve a copy of all the paperwork on your spouse. That is if both parties are in agreement as to how to settle all the issues. If your spouse contests any issue, the time line then depends upon how long it takes to get the issues resolved. Most contested dissolutions that I have handled in Lincoln County are resolved within 5 months to 1 year. Uncontested dissolutions generally take 2 – 4 months from the initial office visit to completion.

Could both spouses use one attorney?

Yes. I often draft the paperwork and guide the person filing the petition through the process, and then the parties themselves can work out what settlement they would like drafted in their cause. Since I only represent the petitioner in this scenario, I cannot give actual legal advice to the other spouse, although I can explain general items, terms, and the process. The other spouse can hire an attorney at any time, or can hire an attorney for the limited purpose of reviewing the marital settlement agreement or other paperwork to be sure they are getting a fair deal.

If I am getting a dissolution of marriage, how do I know which property I should get to keep and what property will be divided up in the dissolution?

Generally, any asset or debt that is acquired during the marriage, regardless of whose name in on the asset or debt, is marital property or a marital liability, meaning the court will normally assess half of that asset or debt to each spouse. Of course, there are exceptions to the rule based on the individual situation between the spouses. Further, any items received by a person as a gift or inheritance or items that the spouse had before the marriage are the separate property of that spouse and will not be divided. The exception to this scenario is if the spouse who has an item of separate property does an act converting that property to a marital asset. For example, if husband received a car by inheritance but subsequently titled the car in husband and wife’s names, that act of putting the wife’s name on the title would then make the car marital property. Further, if husband owned a vehicle before the marriage but made payments on the vehicle during the marriage, part or all of that vehicle will likely been deemed marital property for purposes of property division. There are various arguments to be made with respect to whether property is separate or marital, so the issue of property division is very difficult without an attorney

How does a person know how much child support or alimony they are entitled to?

Child support is calculated by a Form set forth by the Supreme Court. We enter in the average gross income of each spouse – meaning before taxes, savings, 401(k) plans, and the like are deducted, add in any extraordinary expenses the child may require, and the form tells the Court what the presumed correct amount of Child Support is. There are factors to be considered and argued on a case by case basis with respect to Child Support that one probably could not effectively present to the Court without an Attorney, such as the other spouses ability to pay, the child’s actual dollar needs, the amount of resources expended for the child while in the care of the paying spouse, etc.

Alimony, or Maintenance as it is now called, is strictly case by case based on the circumstances of the parties and their marriage. It is not common for either party to be given Maintenance. If a person is capable of working, even if they haven’t worked in years, they are likely going to get very little, if any, maintenance unless there is a really drastic income difference between the parties. Of course the longer the marriage, the more likely there could be an award of maintenance. The Court can consider many factors when deciding whether or not to award maintenance, and an attorney can effectively present your arguments.

When talking to friends about their dissolution situation, remember that every dissolution of marriage case is unique to its specific set of facts, so you cannot compare the out come of someone else’s dissolution to your own.

Guardianship

The terms Guardianship and Power of Attorney are used frequently. What is the difference between the two terms?

Both guardianship and power of attorney give the person named authority to care for or manage the resources of another person while such person is alive but unable to care for themselves on a day-to-day basis or manage their financial affairs. However, both powers cease once a person dies.

A power of attorney is actually signed by a person who is legally competent to execute documents. Often times, individuals sign a power of attorney document when they are doing estate planning so they can give someone the power to manage their affairs prior to their death if they themselves become unable to manage such affairs.

In contrast, a guardianship is issued by the court for persons who are not legally competent to confer a power of attorney to another person for reason that the person is either under the age of 18 or otherwise incompetent.

So when does a person need guardianship?

The biological parents of a child under the age of 18 years are assumed to be that child’s natural guardians. However, a child who is under 18 years of age needs a guardianship if both natural parents are unwilling, unable or unfit to act as that child’s guardian. Also, any person who suffers a medical infirmity such as downs syndrome, retardation, Alzheimer’s or the like, needs a guardian if that person is unable to effectively receive and evaluation information or communicate decisions on their own.

Another power often granted in conjunction with a guardianship is called conservatorship. A guardianship gives the designated guardian authority over a person’s “body” or in other words their physical care. A conservatorship gives a person authority over another person’s financial assets and affairs. In most cases, if a person is unable to take care of themselves, they are also unable to manage their financial affairs, meaning that a conservatorship is also necessary.

What effect does a guardianship have on a person over whom the guardianship is granted?

Persons under 18 do not have a legal capacity to enter into contracts, to vote or to make major decisions on their own. Therefore, a guardianship granted over a minor does not change the minor’s rights. However, the guardianship does establish what person or persons have legal custody and control of that minor. For example, if mother and father are unable, unwilling or unfit to act as the natural guardian, which means the caregiver, of their child and the court granted guardianship over that child to Aunt Sally, Aunt Sally is treated as if she were the natural parent of the child. Therefore, Aunt Sally would have the right to decide who the child does or does not see, where the child lives, where the child goes to school, and the like. Aunt Sally would then have access all records pertaining to the child meaning medical records, school records, and the like. The same is true if the guardianship were granted over an adult in that the court appointed guardian would have full authority to make decisions for that adult, including authority to admit the adult into a medical facility and make decisions with respect to any medical or other treatment necessary for the person.

Once granted, when does a guardianship end?

A guardianship over a minor child ends when that child turns 18 years of age, at which time the guardian can re-petition the court to continue the guardianship. The guardianship could also end if a natural parent or other person files a petition to end the same. In that instance the court would have a hearing and make a decision as to whether the guardianship should continue. If the guardianship is over an adult, the guardianship will continue until any person petitions the court asking that the guardianship be terminated or that some other person be appointed as guardian. The court would then hold a hearing and determine if the guardianship should continue, be terminated, or if some other person should be appointed at that time as guardian. Also, a guardianship over any person terminates upon that person’s death.

If you are the parent of a child over the age of 18 who has a handicap or other infirmities such that the child cannot take care of himself or herself, why should that parent spend the money and time to petition the court for guardianship as opposed to just continuing to care for their child as they have done for the child’s entire life?

This is a question that I am often asked. Parents usually don’t understand why it is necessary for them to petition the court for guardianship over their child when they have cared for the child since birth. This is generally the scenario with children who have Down Syndrome, some type of mental retardation, or other handicaps. Per the law, when any person turns 18, that person is presumed to be an adult and has the capacity to make his or her own decisions. Therefore, if a parent or other person does not petition for guardianship over their child once the child turns 18, the law will presume that the child is now making his or her own decisions and that the parent does not have the right to make decisions for the child. Also, institutions such as schools, hospitals, and any other record keepers will typically refuse to follow the directions of a parent or to release information to the parent once the child has turned 18 without the guardianship. This becomes especially troublesome if the child requires some type of medical care and the doctor or hospital will not allow the parent to make medical decisions for the child once such child is 18 years old. Also, at the age of 18, Missouri State Law assumes that any such person has the legal capacity to enter into contracts on his or her own behalf. Therefore, a person 18 years of age could enter into a contract without knowing what they are doing and actually bind themselves to the contract until a lawsuit is filed asking the court to set the contract aside for reason that the person did not have mental capacity to actually enter into the contract. Once a guardianship is established by the court, the person who is the subject of the guardianship is precluded from acting on his or her own behalf. This means that person cannot legally enter into contracts, cannot request their own records, cannot make decisions for themselves including medical decisions, and cannot be held responsible for any such actions they may try to take. In contrast, a person who confers a power through a power of attorney is not precluded from continuing to act on their own behalf. This is because in a power of attorney situation the person conferring the power of attorney is still legally competent to execute the power of attorney and therefore also still competent to continue to act on his or her own behalf.

What if a person needs assistance with some aspects of life but they are still able to make certain decisions for themselves?

There is what’s called a limited guardianship. Sometimes with respect to children a limited guardianship is granted to another person just with respect to medical care, meaning the person granted the limited guardianship has the right to medically insure the child under their plan or through their employers plan. A limited guardianship can also be granted for the specific purposes of schooling such that the child may then legally attend school in the district where the limited guardian resides. With respect to adults, limited guardianships can be as creative as the judge allows. For example, a person may be adjudged to need assistance making medical decisions, or living arrangements, but may still be of sound mind such that the person should be allowed to vote or to maintain their financial affairs without assistance. Also, an adult may be able to care for themselves but may not be able to manage their financial affairs and would therefore need to petition the court for a limited conservatorship, which is again the power to manage another’s financial affairs. If there is any question that a loved one may need a full or limited guardianship or conservatorship you should certainly consult an attorney.

What is a Health Care Directive?

This is a document, signed by a person which state’s his/her wishes/intentions for medical treatment if he/she is unable to make those decisions on their own. The inability to make competent decisions shall be certified by two doctors before the directive takes effect. It also names the person who shall make these decisions, usually called the agent.

Let’s assume John has been named by Mary to serve as her agent under her health care directive, what should John do?

John needs to determine first what his role and duties are. He needs to look at Mary’s HCD and possibly review the relevant statutes. His duties will begin once two doctors certify Mary is no longer competent to make these decisions.

Once that happens, what authority does John have?

Basically, John has the authority to make any and all decisions Mary would make if she was able. This includes:

Receiving the same medical information Mary would receive
Confer with the medical team
Review the medical records
Ask questions and get answers
Discuss treatment options
Request consultations and second opinions
Consent to or refuse medical treatment, including life-sustaining treatment
Authorize to transfer to another facility
Authorize release to home
If authorized, consent to organ/tissue donation
If authorized, consent to autopsy.

How does John go about making these tough decisions?

The toughest decision may concern beginning or stopping life-sustaining treatments. In each life there may come a time when the patient’s condition has deteriorated and it is clear that he or she will not get better. Rather than thinking of this as depriving your loved one of necessary treatment, you may be protecting that loved one from unnecessary pain and suffering. Many people say they do not want to die slowly, hooked up to machines, or fed artificially through tubes. You need to know what your loved one wants.

John must first find out all the medical facts. This requires talking to doctors and getting a complete picture of the situation. Second, John needs to find out all the options. Make sure the doctor describes the risks and benefits of each option. Third, John must figure out how Mary would decide if she knew all the facts and options.

How does John “figure out” how Mary would decide?

There are three possible approaches to this:

First, if John knows Mary’s wishes, he should follow them.

Second, if he doesn’t know her wishes for the specific decision at hand, but has the evidence of what she might want, he can try to figure out how she would decide. This is called substituting judgment, and it requires trying to step into Mary’s shoes. The aim is to try to get to what Mary would decide, even if it is not what John would choose for himself.

Third, if John has very little or no knowledge of what Mary would want, then John and the doctors will have to make a decision based on what a reasonable person would do in that same situation. This is called making decisions in the patient’s best interest. John needs to evaluate the benefits and burdens on the proposed treatment.

Finally, are there things an agent can do to make these decisions easier?

Yes, let me give you five things real quickly:

Do prepare in advance with your loved one. Learn what is important to him or her in making health related decisions. Talk about beliefs and values regarding living and dying. Talk about spiritual beliefs.
Do make yourself and your role known to the medical staff. Make sure the HCD is in the medical chart. Keep a copy with you as well. Show it to all the medical providers involved in your loved one’s care.
Do stay informed about the person’s condition as it changes. Medical conditions change, medical staff change. Identify the best person to keep you informed of these changes. Stay involved and be flexible.
Do keep the rest of the family informed. Although you may have the legal authority to act, most agents feel more comfortable with the decisions if other family members have input. Good communication can foster consensus. If disagreements arise, seek out help from social workers, clergy, or other outside sources.
Do advocate on the patient’s behalf, and assert yourself with the medical team, if necessary. Some medical personnel may not be comfortable with your involvement. You may disagree with the doctor’s recommendation. This is hard, but you must be tactful and assertive.

Probate: What is it and how can we avoid it?

You hear people make the statement they want to avoid probate, what does that mean?

That is probably the most frequent request I get when working on someone’s estate plan. Let’s look at what happens upon a person’s death. At the time of death any assets they own must now be transferred to the new owner. If it is jointly owned, it goes to the other person. If it is held in trust, it goes in accordance with the trust. However, if they own it in their sole name, it must be retitled and distributed to the right person. The probate division of our court system is there to ensure that the property gets distributed to the right persons and is retitled in the correct name.

So when we talk about a will being probated, or an estate going through probate, we simply mean it is going through the judicial process of being distributed to the rightful heirs and retitled in the correct name.

Could you take me through the process of probate?

If a person has a will, the person who is named personal representative or executor in the will takes the will to an attorney who then files it with the probate division. From there, assets are gathered, debts are paid, and ultimately the remaining property gets distributed to the heirs named in the will. If there is no will, the process is basically the same, except the remaining property is distributed in accordance with Missouri law.

So why do people want to avoid probate?

One of the primary reasons is to avoid costs. When a person’s estate goes through probate there are a number of costs or expenses. First, there are court costs. Generally, these are tied to the size of the estate, but usually are just a few hundred dollars. Second, there are costs of publication. In most situations there are at least two notices that must be published in the local paper, one at the commencement of the case and one at the conclusion of the case. These also run a few hundred dollars.

Third, there may be bond premiums that need to be paid. When someone is appointed personal representative, they have to be bonded to guarantee the faithful performance of his/her duties.

Fourth, there are the personal representative’s fees and attorney fees. Generally, these are set by statute and are based on the size of the estate. This is where the greatest costs are seen. In Missouri, for example, on a $100,000 estate, the attorney and the personal representative both would receive $3300 for fees, for a total of $6600 in attorney and personal representative fees.

As you can see, if you have an estate worth at least $100, 000, you are going to have costs and expenses of around $7500.

Are there other reasons people want to avoid this process?

Yes. Other reasons may include time. Even the simplest estate can take 6-8 months to complete. Some people don’t want the size of their estate known. Files in the probate division are open to the public. Anyone can go and look at these files at anytime. Some people believe that if your estate is in probate, the court, or Missouri law, controls where you property goes. While this isn’t true, your will controls this, there is that perception.

But don’t get me wrong, while these are all legitimate concerns, the probate division is there to assist in getting their assets distributed to their heirs, and it is very effective part of our judicial process.

If a person wants to avoid probate, are there things they can do?

Absolutely. First, if you own property jointly, these assets pass automatically at your death. For example, if a husband and wife own a piece of real estate or have a bank account together, these automatically go to the surviving spouse. This also works if you have a joint account with your son or daughter.

Second, you can do things such as set up a beneficiary deed on real estate, a payable on death on your bank account, or a transfer on death on your vehicle titles. Again, these pass immediately upon death.

Third, you can set up a living trust. There are several reasons to set up a trust, but one of the most common reasons is to avoid probate. With a trust, you transfer your assets into a trust, and upon your death, the trustee distributes the assets in the manner you set forth in your trust agreement.

Fourth, although not popular, you can give away everything you own during your lifetime, and thus have no assets to pass on at your death.

Finally, the best advice I can give is to go talk to an attorney who does estate planning. Everyone’s situation is unique. There are other considerations in setting up a good estate plan besides avoiding probate. Some people may want to reduce the estate tax burden, others may want to protect their assets for their grandchildren, still others may want to give money to charity or maybe set up an education trust, or maybe there are those who need to make sure their disabled child gets taken care of.

I know we don’t like to think about our own mortality, but if we want to maximize what we can pass on to our children, we need to start planning today. Avoidance of probate is only one factor in establishing an effective estate plan.

What is Small Claims Court?

Small Claims Court is truly a people’s court. It doesn’t cost much money to file a claim, typically less than $30. It is used for claims of $3000 or less. And usually you don’t need a lawyer as rules of evidence are not followed. In small claims court, people are simply allowed to present their cases to the judge without much interruption.

How do you file a claim?

First, small claims court is located at the court house. When you go there, you ask to speak to the clerk who handles small claims. Most courts also have a handbook they can give you which gives you all the information about Small Claims Court, how to file suit, how to serve the defendant, how to collect your judgments, etc.

Second, you need the name and address of the person you are going to sue. The clerk will help you fill out the paperwork, and tell you when you need to come back for court.

What do you do on your court date?

First, and most importantly, you must appear that day. If you don’t appear, your case will be dismissed.

Assuming you get to court, you need to bring all paperwork you have that you want the judge to see. When your case is called, you will have the opportunity to talk to the judge, telling him/her your reasons why you are entitled to receive money from the other side. You can also give the judge all your paperwork. You can have witnesses talk to the judge as well.

The person on the other side will have the same opportunity to talk to the judge, show paperwork and present witnesses.

When everyone is done talking to the judge, the judge will then make a decision as to how much money, if any is owed to you.

What happens after I win my case?

If you win, a judgment will be entered against the other party. A judgment is a piece of paper that says you are owed a certain amount of money by the other side. The losing party may appeal the case to another judge for a new hearing if they want. If it is appealed, the case will be retried in front of a new judge.

If you win and no one appeals, you now must collect the money. The court will not collect it for you.

So what do you do to collect?

If the losing party does not voluntarily pay, you will need to go back to the courthouse and fill out an additional form called a garnishment. You will need to know where the other person works or banks in order to collect. Once you know that, you file the form with the court and pay a small fee to the local sheriff’s department to have the form served on the bank or employer. In small claims court you are usually only garnishing the other person’s wages or bank accounts. There are some other assets you can garnish, or execute against, but for small claims judgments, you cannot place a lien on real estate.

Once the debt is paid, you then have to file a document with the court stating the debt is paid in full.

Should you always file in small claims court if the amount owed is $3000 or less?

For the most part, yes, because of the limited costs, the ease of presenting your case, and how quickly the matter gets resolved. However, I would always suggest you speak with an attorney first before deciding to file a small claim. Just because your claim is $3000 or less doesn’t mean you have to file in small claims court. You do have the option of filing in regular court.

Why would you not file in small claims court?

There are numerous reasons, but the primary ones would include being able create a lien on real estate and making sure the rules of evidence are applied and followed. You may also be entitled to other compensation depending on the nature of your claim. In small claims court, you are limited to only the recovery of money.

So as you can see, while small claims court is a relatively simple court to maneuver through, you still should seek legal counsel before deciding to file your claim. Talk to your attorney about your claim and follow the advice he or she gives you.

Traffic Violations

Everyday people are issued traffic tickets, and many people just pay the fine for the violation so they do not have to go to court. Is there any reason that a person should not just pay the ticket to save time and the expense of an attorney?

Many people are under the mistaken impression that once issued a traffic ticket they have no alternative other than to pay the ticket and accept the ramifications thereof. Some tickets in our area will say at the top of the ticket FCC due in 30 days. This further leads people to believe that they don’t have any choices but to pay the ticket in 30 days, and that is certainly not the case. By paying for the ticket, the person will then receive one or more convictions on their driver’s record, depending on how many tickets were issued, as well as points for each conviction. That person’s insurance company will eventually find out about the convictions on that person’s driving record and normally will increase rates accordingly. Further, if that person desires to change insurance companies within the next two to five years, the new insurance company will check their record and see those items are on their driver’s record. Also, potential employers often request a driving record particularly if your employment is going to consist of driving a company vehicle or making deliveries. Also, if a person intends to apply for life insurance, an underwriter will oftentimes request a copy of the driver’s record to assess risk for insuring that person. Further, if that person receives any additional tickets or is involved in a car accident at a later time, the insurance company may choose to drop coverage on that person based on the prior tickets coupled with later tickets or an accident. So as you can see, there are several consequences to paying for a traffic ticket.

But what can you do about traffic tickets?

If you hire an attorney who handles traffic law cases, that attorney is able to review the ticket issued as well as any reports that may have been made by the police with respect to that incident to ensure that proper procedure was followed prior to your receiving the ticket. Also, the attorney can enter into negotiations with the prosecuting attorney and try to obtain an outcome for your case that will not result in a conviction on your driver’s record or points on your driver’s record.

What if I have a commercial drivers license?

A commercial drivers license, or a CDL carries its own set of consequences. Most people have a CDL only if their job requires it. There are heightened standards for receiving a CDL, and likewise, you are given less leeway in terms of points on your license before your CDL is suspended or revoked. This makes it even more important for you to seek the services of an attorney if you are issued a ticket and hold a commercial drivers license even if you are not driving a commercial vehicle at the time the ticket was issued.

Explain the process that happens when a person receives a ticket.

Let’s say a driver named John receives a ticket for speeding. John’s ticket will have a court date, time and place for John to appear in front of the judge. John is required to attend court on that date to either plead guilty or request additional time to get an attorney, or to request a trial. Without an attorney, it is likely that John will ultimately be found guilty of speeding at which time his drivers record will reflect the conviction along with at least 2 points for that ticket.

Alternatively, if John chooses to seek the services of an attorney, the attorney can go to court for John. The attorney will request any reports made in connection with the ticket and will review the ticket to be sure proper procedure was followed. The attorney will then negotiate with the prosecuting attorney based on the circumstances. So in my example, if the prosecuting attorney allowed him to plead guilty to what’s called a no point speed violation, that would result in no points being assessed on John’s driving record and in most of our local jurisdictions, those tickets are not reported to the drivers license bureau at all. Therefore, there would be no evidence on John’s driving record at all that the ticket was ever even issued. Thereafter, persons who review John’s driving record will only see the points or convictions actually plead to by John, and not the original charges for which the ticket or tickets were issued.

Do other types of tickets lead to points and convictions on your driving record?

Any moving violation will result in points added to your driving record if you simply pay the ticket that was issued to you or if you later plead guilty to the ticket or are found guilty by a court. This would include failure to stop at a stop sign, a ticket for not having proof of insurance on you, a failure to yield ticket or failure to drive on the right half of the road as well as more serious offenses such as driving while intoxicated or driving while suspended.

How many points can you accumulate before you get suspended?

This becomes complicated because there are different levels of suspension. Any time you accumulate eight points within eighteen months of each other you are suspended the first time for a minimum of 30 days and then if you do so again, you will be suspended for progressively longer periods of time. However, if you accumulate enough points to where you received 12 points within a 12 month period, you will actually get your license revoked for one full year. There are other point accumulations that result in your license being suspended or revoked, but the main thing to remember is once points begin to accumulate on your driver’s record you are slowly putting yourself in danger of being suspended for at least 30 days. I see this happen sometimes with younger people who don’t want their parents to realize they have received traffic tickets. The young people assume if they pay the ticket quickly their parents will never find out and there will be no harm. But after the accumulation of points, the young people will receive a notice from the Department of Revenue that their license is being suspended for accumulation of points. Another danger is what is called five and ten year denials which are issued to persons who have repeated revocations or repeated alcohol contacts such as multiple driving while intoxicated charges or some jurisdictions call it driving under the influence.

Can you also help with Driving While Intoxicated and Driving While Suspended or Revoked charges?

Yes, that is a great question. It is extremely important to seek legal advice if charged with Driving While Intoxicated, which can mean that the authorities are alleging you were either under the influence of alcohol or drugs or both. There are specific requirements that law enforcement must follow when charging you with such an offense, and your attorney can review the reports generated as well as the situation that led to your being charged to determine if correct processes were followed. Your attorney can also identify any defenses you may have to these charges and can also work with the prosecuting attorney to reach an acceptable resolution to your case rather than your simply accepting a conviction on the charge. The same applies for a Driving While Suspended or Revoked charge. If convicted, either one of these would be a 12 point violation meaning you would lose your license immediately. However, in all cases I mentioned here today the exact resolution is a case by case basis. The more convictions that you have on your criminal or driving record, the more difficult it will be to reach a desirable resolution for future tickets. That is why it is so important to seek the assistance of legal counsel on each ticket, even if you think the consequences of the ticket will be insignificant.

What is a Will and how does it work?

What is a will?

A will is simply a legal paper that states who receives your property when you die. Each state has its own laws about wills and how they work. Anyone at least 18 years old can make a will as long as he/she is competent.

Why do you need a will?

There are a number of reasons a person will want to have a will. First, it allows you to decide where your property is going after your death. Second, if you are a parent of minor children, you can establish who would be guardians of your children; you can provide for your children without court intervention; you can set up a trust for your children or any other family member. Third you can set some guidelines to save costs such as waiving a bond and providing for independent administration of your estate. Finally, you will have the assurance of knowing you have planned for your family.

If you already have a will, how long is it valid and when should you update it?

A will is valid until changed or canceled by you. However, if you get divorced, a will benefiting the ex-spouse is not enforceable. So you should look at changing or updating your will when your situation changes. Some examples would include getting divorced or getting married. You should consider re-visiting your will if your family, property, money or other assets change in value or nature. Or if you move to another state, you should have your will looked at to make sure it conforms to your new state’s laws.

Are there things to do that take the place of a will?

I wouldn’t say there are things that replace a will, but there are things that supplement it. You can do a number of things that will allow property to pass to someone without the benefit of a will. We often term those things as non-probate transfers. You can do things such as put someone else’s name on your bank account or do a payable on death. On your vehicle you can change the title to add someone as a beneficiary, a transfer on death. You can do a beneficiary deed on your real estate which automatically transfers real estate to your named beneficiary upon death. Or you can do a living trust which allows a trust to disperse your assets.

Again, these things should supplement a will, not replace one. Regardless of what you do, you should talk with an attorney before deciding to not have a will.

What happens if you die without a will?

If you die without a will, your property that you own alone will essentially go to your closest relatives. While in some cases that may be ok, if you want property given in a certain manner, or to persons or entities that are not close relatives, then you have problems. The bottom line is that the persons receiving your property are decided by law, rather than your wishes. Further, you will have not control over who are the guardians of your children or how any assets they receive will be handled.

If someone wants more information, where can they go?

The best place to go is to an attorney who does probate and estate planning. This is an area of law where things keep changing, so you need someone with expertise in this area. I know there are will kits and things such as that out there, but you need someone who can evaluate your situation and give you advice on what you need. The last thing you want is to write up where you want your property to go, only to find out that it isn’t a valid will.

Juvenile Court

In general terms, when do youth officially become adults in Missouri?

Generally speaking for criminal matters, a young person becomes an adult when he/she turns 17. In all other matters, a young person becomes an adult when he/she turns 18 (i.e., to sign contracts, etc.).

Tell us about the process. If a juvenile is caught in a crime. What happens to them?

When a juvenile is “arrested”, the matter is immediately referred to the juvenile office in the county where the crime is alleged to have been committed. The juvenile officer will conduct an investigation and determine how to handle it. The JO can either handle the matter formally or informally. If it is handled informally, typically, the JO will arrange a meeting with the juvenile, discuss the matter, and possibly have a period of “unsupervised probation”. If it is handled formally, then a petition is filed in juvenile court where a disposition is ultimately approved by a juvenile judge.

If a disposition is approved, what is the next step? What does that mean to a case involving a juvenile?

In juvenile court, a disposition is essentially the equivalent of a judge in adult court issuing a sentence. The disposition, for example might be probation, or time spent confined in the division of youth services.

How do the courts determine whether to try a youth in juvenile court or adult court? What factors are considered?

First, there are 8 situations where a juvenile court is required to conduct a hearing to determine whether a juvenile remains in juvenile court or is tried an adult. There are:

1. First degree murder
2. Second degree murder
3. First degree assault
4. Forcible rape
5. Forcible sodomy
6. First degree robbery
7. Distribution of drugs
8. If the juvenile has committed 2 or more prior unrelated offenses that would be felonies had the juvenile been an adult.

There are only required hearings, not required certifications.

The basic things a judge should consider when deciding whether to try a juvenile as an adult are essentially where the child is a proper subject to be dealt with under the juvenile code, and whether there are reasonable prospects for rehabilitation within the juvenile system.

There are a number of factors that a judge considers, including, the nature of the alleged offense, the juvenile’s record, the juvenile’s level of maturity, the programs and facilities available for the juvenile, and the age and racial disparity.

How difficult is it to make that determination? What are the consequences of trying, say, a 13 year old as an adult for a crime? What happens if they are convicted? Where do they serve out their sentences? Adult prisons?

I can only imagine this is a very difficult decision for a juvenile judge to make. Once a juvenile is certified as an adult, they are treated as an adult for any other future actions, including things that may be relatively minor offenses. In addition, as a society, we don’t have any real means for taking care of a 13 year old who has been tried and convicted as an adult. What do we do with them? Do we put them in prison with older adults? Most of the time we don’t, but there is nothing preventing this from happening. Our prison system is not set up to handle these types of situations.

What if they aren't convicted? They're names have been released to the media. What does this mean for the youth and his or family?

Even if a young person is not convicted, the matter has been put to the public. As you know courts are open and the general public now can know details it would never have known had the matter been kept in juvenile court. Again, this also means that once he/she was certified, he will always be treated as an adult from now on, so this can have a devastating affect on the juvenile and his family for many years to come.

If they are tried and convicted in juvenile court, do the sentences stop at age 18 (or the age they stop being a juvenile), or can those sentences carry over past that age?

The juvenile court can maintain jurisdiction over a person convicted in juvenile court until they reach the age of 21.

If you have a son or daughter or grandson who gets into trouble, what should you do? What questions should you ask when you seek legal advice or try to find representation?

The first thing is to contact an attorney. Make sure the attorney practices in the area of juvenile law. This is important as this is a different area of law and things are handled differently than in adult court. Ask the attorney about his or her experience. If you don’t know any attorney, you can also contact the Missouri Bar’s referral program.