MartinWren, P.C. has valuable experience representing clients in federal court against a major lender for alleged violations of the HPA.  If you have a Bank of America NFMP mortgage and your loan is burdened by LPMI that was placed on your loan without notice to you, you may have a claim against Bank of America for money damages.  If you have been frustrated by your inability to take advantage of historically low interest rates because you have a NFMP loan with LPMI, and Bank of America has ignored your pleas for help, please call Jonathan T. Wren or John B. Simpson at MartinWren, P.C. for a free initial consultation, toll free at 855-812-9220, or contact them by email at wren@martinwrenlaw.com or simpson@martinwrenlaw.com.  If you intend to pursue litigation against Bank of America for this wrong, please do not delay – the HPA has a statute of limitation that may bar your claim if you do not act promptly.

This truth is perhaps most evident when discussing no-fault divorce in Virginia.  To obtain a no-fault divorce in Virginia, the parties must first have a separation period of one year if they have minor children, or six months if they do not have minor children and have executed a written separation agreement.  The statutory divorce law is very specific that the separation period must be uninterrupted for the requisite period, and the married couple may not cohabit with each other during that time period.  As the name suggests, a no-fault divorce is not concerned with the reasons the divorce occurred.

Virginia law also recognizes at-fault grounds for divorce.  Unlike no-fault divorce, an at-fault divorce focuses on the reasons the marital union was terminated.  At-fault divorce grounds include:

- Adultery, sodomy, or buggery committed outside the marriage;

- Where either party to the marriage has subsequently been convicted of a felony, sentenced to confinement for more than one year, and confined for the felony subsequent to the conviction, and cohabitation has not resumed after knowledge of such confinement; or

- where either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other, a divorce may be granted after the passage of one year.

Virginia Code § 20-91.

The type of divorce ground one pursues may depend on a number of issues, not just on the evidence available.  For example, it is possible that a wife may have grounds for seeking a divorce against her husband on a fault-based ground but, for a variety of reasons, including the increased expense and difficulty of proving the existence of fault, she may elect to proceed on a no-fault basis.  Depending on the circumstances, the decision regarding how to proceed can be a difficult and delicate one, and it is a decision that requires the informed input of an experienced attorney following a detailed consultation.

For more information about the divorce process in Virginia and to learn your rights, please contact Robert E. Byrne, Jr. of MartinWren, P.C. for a consultation.  Bob is a Charlottesville Divorce Attorney who has been recognized by Super Lawyers magazine, he has been given an AV-Preeminent rating by Martindale Hubbell, the oldest and most distinguished lawyer rating service, and he has been named by the National Trial Lawyers as one of the “Top 40 Under 40″ Trial Lawyers in Virginia.  To contact Bob, please call (434) 817-3100 or, if you prefer, please send him an email at byrne@martinwrenlaw.com.

For more information, or to RSVP to the seminar, please contact Barbara Kinn at (434) 817-3100.

Greg and Raye will also be presenting an evening session on Tuesday, May 8, 2012, from 6:00 p.m. to 8:00 p.m. with Joseph J. Fahey, CFA, the Senior Director of Planning at Wells Fargo.  The evening session, entitled “Business Succession Planning Before the 2012 Window Closes,” will discuss business succession strategies and options for business owners.

For more information, or to RSVP for either or both seminars, please contact Jennie Casaday at 434-244-3923 or jennie.casaday@wellsfargo.com.

 I.  DOCUMENTS.

   A.  Will

A will permits a person to state who will receive their property at death.  Even if you want your property to pass according to the laws of intestacy, which are the laws in Virginia that dictate who will receive your property if you die without a will, a will has several advantages.

In a will you can appoint the personal representative of your estate.  The personal representative, called an executor when he or she is appointed in a will, is the person responsible for collecting and distributing a decedent’s assets.  Without a will, the law permits the court to appoint any beneficiary of the decedent’s assets as the personal representative, called an administrator when the decedent died without a will.

An individual can also waive surety on the bond in a will.  When a personal representative is appointed, the court will require surety on the bond.  Typically this means that a surety company will provide insurance against the personal representative mishandling assets of the estate.  Like any insurance, this costs money.  This requirement can be waived in a will, saving the personal representative and the estate hundreds of dollars.

In addition, if you have minor children, you can direct who shall be the guardian of your children if you pass away.  This can help assure that your children will be raised by those you want to raise them, and help avoid conflict among family members if multiple people feel they are best suited to raise your children.

To be effective, a will must be filed in probate court.  Probate is a judicial process for managing your assets if you become incapacitated and for transferring your assets in an orderly fashion when you die.  The court oversees payment of liabilities and the distribution of assets.  Generally, your personal representative will need to employ an attorney.

Because a will does not take effect until you die, it cannot provide for management of your assets if you become incapacitated.  Other estate planning documents, discussed below, become effective if you should become incapacitated.

  B.  Durable Power of Attorney

A valid Durable Power of Attorney will allow your loved ones to use your finances to take care of you in the event that you become incapacitated.  One can become incapacitated at any time, and your loved ones may be left with the burden of personally paying your monthly expenses, and paying any new medical expenses and other costs that may arise in the event that you become incapacitated.  A valid Power of Attorney will allow your attorney-in-fact to write checks on your behalf, buy and sell property on your behalf, and generally maintain your finances so that you may be taken care of appropriately.

A traditional power of attorney terminates upon your disability or death.  However, a durable power of attorney will continue during incapacity to provide a financial-management safety net.  A durable power of attorney terminates upon your death.

  C.  Advance Medical Directive

An Advance Medical Directive announces to the world your medical wishes in the event that you are unable to state them.  In addition, it appoints an individual to make medical decisions on your behalf.  Lost in the wake of Bush v. Schiavo was the fact that the fights among family members and the undesirable public attention could have been avoided if an Advance Medical Directive had been in place.  The Advance Medical Directive includes a living will and a healthcare power of attorney.

A living will expresses your intentions regarding the use of life-sustaining measures in the event of a terminal illness.  It expresses what you want but does not give anyone the authority to speak for you.  The healthcare Power of Attorney designates a person with the authority to speak for you.  Both the living will and the healthcare Power of Attorney are incorporated in the Advance Medical Directive.

  D.  Revocable Trust

There are many different types of trusts with different purposes, each accomplishing a variety of goals.  A revocable living trust is one type of trust often used in an estate plan.  By transferring assets into a revocable trust, you can provide for continued management of your financial affairs during your lifetime (when you’re incapacitated, for example) at your death and even for generations to come.  Your revocable living trust lets trust assets avoid probate and reduces the chance that personal information will become part of public records.

Every revocable trust has three important components.  The grantor (or settlor) – generally you – creates the trust and transfers assets to it.  The beneficiary(ies) – often you and your family – receive the income and/or principal according to your trust’s terms.  The third component, a trustee – who could be you, a family member or a corporate trustee – manages the trust assets.

You can change a revocable trust’s provisions at any time during your life.  If you act as your own trustee, you continue to manage your investments and financial affairs.  In this case, your account might be titled “(Your name), Trustee of the (Your Name) Revocable Living Trust Dated (Date).”  Because this legal entity exists beyond your death, property titled in the trust does not need to pass through probate. 

There are several advantages and disadvantages to a trust as opposed to a will.  The advantages include:

(1)               Flexibility

 If you leave your assets in a trust, you direct a trustee to hold the assets for the benefit of your named beneficiaries.  Thus, if you have young children, special needs children, or adult children that you do not want to hold your assets outright, you can direct that a trustee hold the assets and use them on your beneficiaries as needed.  Often a trustee will only use the assets for the health, maintenance, support, and education of the beneficiary.  This will help ensure that the assets are used when your beneficiary needs them, and that they are not wasted by the beneficiary.

Of course, a trust can be created in the will document itself.  Trusts created in a will are usually established for the benefit of minor children, and all assets are usually paid to the beneficiary when he or she reaches age 21.

(2)               Professional Management

When you place your assets in trust, you can appoint a financial manager, such as a bank, to manage your assets.  Many individuals want to know that their property will be managed by someone with the knowledge and education to oversee the growth of their assets.

(3)               Privacy

A will, once probated, is recorded in the Circuit Court of the County or City in which the decedent last resided.  Any person that wants to see the contents of the will may obtain a copy at the courthouse.  By contrast, generally only the beneficiaries of a trust are entitled to view the contents of the trust.  Of course, one has to question whether he or she has anything to hide in the will, and even if he or she does, whether any individuals will be sufficiently motivated to go view the will at the courthouse.

(4)               Avoid Estate Administration

Administration of the Estate can be a burden on a personal representative.  It requires a significant amount of time to collect all the assets of the estate and distribute them properly.  There may also be significant costs associated with administration of the estate as well.  These include probate taxes and court costs involved in probating the will.  It may also include legal fees if the administrator seeks legal advice to ensure that the administrator is not personally liable to any beneficiaries or creditors of the estate.

II.  YOUR NET WORTH/ASSET PORTFOLIO

An important step in the planning process is to create a comprehensive net worth statement showing all of your assets, including taxable accounts, tax-deferred accounts (IRAs, annuities, retirement plans) and life insurance investments.  Your attorney and your financial advisor need to know your assets, their values and how each asset is owned in order to properly advise you of all of your options.

III.  CONSISTENT, PERIODIC REVIEW

Once you have executed the appropriate documents for your planning needs, you should review them periodically to ensure they remain up-to-date given any significant changes (births, deaths, divorces, etc.) in your situation or even if you believe there have been no significant changes.  What you don’t know can cost you and your loved ones and harm the value of your assets.  Having these documents in place is important, but there’s more to the estate planning process.  For example, you’ll need to coordinate primary and contingent beneficiary designations on your IRA, employer-sponsored retirement plan (such as a 401(k) or 403(b) plan), annuity contracts and life insurance policies with your estate plan.  And you may have estate-tax issues to deal with as well.

G. Raye Jones, the author of this post, is a Wills, Trusts, and Estates attorney with MartinWren, P.C., who represents clients in estate planning and advanced tax planning.  For more information about any of the estate planning instruments, please contact Raye at (434) 817-3100 or by email at jones@martinwrenlaw.com.

 This blog series will begin with an outline, in very general terms, of the duties of the Personal Representative of a Decedent’s estate.  It will then define certain basic terms used in this and future blogs posts on this topic.  Next, the blog will focus on actions that may be taken before the person has qualified as Personal Representative.  Finally, it will describe how a person may qualify as the Personal Representative of a Decedent’s estate.

 1.  Duties of Personal Representative.  In general terms, once you have been appointed and qualified as Personal Representative of a Decedent’s estate your duties are (i) gather the assets, (ii) pay debts, taxes and expenses of administration, (iii) distribute the assets, and (iv) close out the estate. 

 2.  Definitions.  Following are the definitions of certain basic terms that will appear in these blogs:

 “Personal Representative” of a Decedent’s estate refers to the Executor or Administrator, whichever is applicable.

 “Executor” is the person appointed as such in the Decedent’s will. 

 “Administrator” is the person appointed as such by the appropriate circuit court, clerk or deputy clerk when the Decedent either dies intestate (without a will) or all the executors appointed in the will fail to qualify or cease to serve (a person must ask the court or clerk to be appointed and qualified as the Administrator of a Decedent’s estate).

 “Residuary Beneficiaries” refer to the people or institutions who receive the balance of the Decedent’s estate after all debts, taxes, expenses of estate administration and any specific gifts under a will have been made. 

 3.  Actions One is Permitted to Take Prior to Being Appointed and Qualifying as Personal Representative. 

A.  An Executor appointed under a will may provide for the burial of the Decedent, pay reasonable funeral expenses and preserve the estate from waste, but otherwise does not have the powers of an Executor until he qualifies by taking an oath and giving bond in the court in which or before the clerk by whom the will or an authenticated copy thereof is admitted to record.  

B.  An Administrator may not take any action on behalf of the Decedent’s estate until he has been properly appointed and qualified.

 4.  How to Probate the Will and be Appointed and Qualified as the Personal Representative of the Decedent’s Estate. 

 A.  If the Decedent had a will, typically the Executor will probate the will at the same time he qualifies as Executor in the Circuit Court clerk’s office in the county or city in Virginia where the Decedent resided; if he has no such house or known place of residence, then in a county or city where there is any real estate that is devised or owned by the Decedent; and if there be no such real estate, then in the county or city wherein he dies or a county or city wherein he has estate.  Therefore, the Executor will need to take the original will with him to the court or clerk’s office when he probates the will and qualifies as Executor.

 B.  The Administrator would generally be appointed and qualified in the same city or county where the Decedent’s will would have been probated, had there been one.  During the first thirty days following the intestate Decedent’s death, the clerk may grant administration (i) to a sole distributee or his designee or (ii) in the absence of a sole distributee, to any distributee or his designee who presents written waivers of right to qualify from all other competent distributees.  After thirty days Virginia law provides for a certain order in which the court or clerk may appoint and qualify Administrators.

 C.  When he qualifies, an Executor shall take an oath that the writing admitted to record contains the true last will of the Decedent, so far as he knows or believes, and that he will faithfully perform the duties of his office to the best of his judgment.

 D.  When he is appointed and qualifies, an Administrator shall take an oath that the Decedent has left no will, so far as he knows, and that he will faithfully perform the duties of his office to the best of his judgment. 

 E.  Generally the Executor will have to post a bond in the amount determined by the clerk or court, with corporate surety, unless the will waived the corporate surety requirement or all of the Residuary Beneficiaries under the will are also  Executors.  Generally the Administrator will have to post a bond in the amount determined by the clerk or court, with corporate surety, unless all of the distributees of the Decedent’s estate are also Administrators.  A corporate surety would generally be an insurance company that would charge a premium for providing this service which must be arranged beforehand by the Personal Representative. 

 F.  The Personal Representative will also have to pay a state and local probate tax that is based on the value of the estate.  The Personal Representative must provide the clerk or court with an estimate of the value of the estate at the time of qualification.  For every $100 of value, or fraction of $100, a probate tax of 10 cents is imposed by the state and a tax of 3.33 cents may be imposed by the city or county where the Personal Representative is qualifying.

G.  The Personal Representative must also file a List of Heirs that identifies the heirs of the Decedent in existence on the date of the Decedent’s death and pay a fee of $50 for recording this list.

H.  The Personal Representative must also provide the clerk or court with other general information about the Decedent and Personal Representative, as well as a copy of the death certificate. 

I.  The clerk or deputy clerk will generally prepare all of the forms necessary to probate the will and qualify the Personal Representative from information provided by the Personal Representative unless the Personal Representative has done so beforehand.

Greg Johnson, the author of this post, is a C.P.A. and an attorney who serves as the head of the Business, Corporate, and Tax section of MartinWren, P.C.  For more information about Estate Administration or serving as an executor or administrator of an estate in Virginia, please contact Greg at 434-817-3100 or by email at johnson@martinwrenlaw.com.

To learn more about MartinWren’s family law services in Virginia, please call Robert E. Byrne, Jr., the firm’s managing attorney, at 434-817-3100 to discuss our services or to schedule a consultation.

 From its office in Charlottesville, MartinWren, P.C. offers legal services to both individuals and small and large businesses across Virginia in: Business, Corporate & Tax Law; Healthcare Law; Estate Planning & Administration; Start-ups and Emerging Companies; as Charlottesville Personal Injury Lawyers; Intellectual Property and Technology Law; Commercial & Residential Real Estate; Civil and Commercial Litigation; and Family Law & Adoption.  Please visit www.martinwrenlaw.com for more information.

This troubling practice arises when a party secured by a mortgage or deed of trust that will be released for less than the amount owed (the “short sale lender”) or someone else involved in the transaction informs the settlement agent or attorney that a particular cost or expense cannot appear on the settlement statement.  One response would be for the parties to eliminate that cost or expense altogether, but that’s not what usually happens. Instead, the settlement agent or attorney is told to just not show the cost or expense on the approved settlement statement.  Some “side deal” or separate settlement statement then is used to account for the forbidden cost or expense.

Our concern is that the settlement agent or attorney and the parties typically sign the approved settlement statement and it at least implies, if it does not explicitly state, that all the financial details of the transaction are shown.  Especially if what is not being disclosed would materially affect the short sale lender’s decision to release the property from its mortgage or deed of trust, the failure to disclose the full details on the approved settlement statement could be a problem.  Even if the short sale lender “knew” about the undisclosed cost or expense, its knowledge could be difficult or impossible to prove if it contradicted the signed, written settlement statement, especially if the parties certify that statement actually did disclose all the financial terms and conditions of the transaction.

In some ways, this problem with short sale transactions is just a new twist on an old problem.  Indeed, the failure to document the actual terms and conditions of transactions accurately was one of the problems that contributed to the collapse of the residential mortgage financial system in the last few years.  You don’t want to become the poster child for what causes any further distress in that system just because “everyone else does it.” Make sure your settlement statement accurately and completely shows all the financial terms and conditions of your short sale deal.

Ronald D. Wiley, Jr., the author of this post, is an experienced Virginia Property Law Attorney who practices Commercial and Residential Real Estate throughout the Commonwealth of Virginia with MartinWren, P.C.  To reach Ron, please call him at (434) 817-3100 or send him an email at wiley@martinwrenlaw.com.

The moniker “Rocket Docket” stems from the breakneck speed at which federal trials progress through the Eastern District, with the average case being tried approximately 10 months from the filing date of the complaint.  Filing a complaint triggers a dizzying pace of filing and disclosure dates, cutoffs, hearing dates, and even speedy resolution of pending motions.  Active cases do not languish on the court docket, as trial dates are chosen quickly and the judges are loathe to grant continuances.  The discovery component of litigation, often the most timely and expensive component of litigation, is stripped of its cumbersome and clogging nature by placing restrictive limits on the quantity of available discovery mechanisms.  Pending motions must be resolved quickly – motions are deemed to be withdrawn unless set for hearing within thirty days of the filing date.

The Eastern District’s rapid and relentless pace is a result of a combination of finely tuned local rules and scheduling orders that seamlessly connect the pleading stage to discovery and propel a case to an early trial date in a manner that prevents gaps from occurring.   Once a complaint is filed in the electronic case filing system, Local Rule 16 requires the Court to hold a pretrial conference “as soon as possible,” where the court establishes a discovery cut-off date 90 or 120 days later, schedules a final pretrial conference date, and, “whenever practicable,” schedules a trial date.  The Rule 26 conference also follows tight deadlines, with parties required to submit a discovery plan within 14 days of the conference.  The Court further limits many of time consuming aspects of discovery by placing strict limits on the number of depositions permitted and interrogatories issued.

If proper steps are taken, parties can use the speed of the Eastern District of Virginia to their advantage.  Sophisticated plaintiffs can capitalize on the rapid pace of the Eastern District of Virginia by seeking an expedient resolution that maximizes litigation budgets and reduces the advantages defendants often have by increasing litigation costs and slowing the pace at which a case proceeds.  But pursuing a case in the Eastern District requires a plaintiff to meticulously prepare before the complaint is filed because, once the complaint is filed, there is not adequate time to investigate all facts and law, develop a theory of the case, and identify and hire experts.  To the extent possible, these items must be completed before litigation ensues.

Defendants, too, can utilize the nature of the Eastern District to their advantage by pushing a case quickly through discovery to reach a summary judgment disposition or onward to trial in a reasonable amount of time.  Unless defendants are methodically prepared, however, the relentless speed of the Eastern District of Virginia can catch them by surprise as the mounting deadlines require defendants to swiftly mount a legal team, identify experts, and formulate a strategy to use in the case.  Defendants sued in the Eastern District must implement their defense strategy quickly and decisively, and such defendants may suffer irremediable prejudice if they do not act immediately. 

Litigating in the Eastern District of Virginia can be a boon or a tragedy depending not just on the substantive merits of the case, but on how prepared parties are to work within the demanding procedural system.  If you or your client are facing litigation in the Eastern District, be aware of the unique nature of this Court and be sure to have a member of your team who is familiar with the demanding rules and procedures of the Eastern District.

Robert E. Byrne, Jr., the author of this post, is an AV-rated trial attorney who practices Civil and Commercial Litigation and Personal Injury law while serving as the managing attorney of MartinWren, P.C. in Virginia.  MartinWren, P.C.’s trial attorneys have valuable experience litigating federal court cases, whether as local counsel or lead counsel, in both the Eastern District of Virginia and the Western District of Virginia.  For more information about litigating a case in the federal courts of Virginia, please call Bob at (434) 817-3100 or contact him by email at byrne@martinwrenlaw.com.