How to Avoid Probate (and Family Fights) Over a Bank Account

A big part of our job is helping people avoid the Arkansas probate process.

One of the ways we help people avoid probate is changing information about personal bank accounts. If you die and you’re the only person on your bank account, your heirs will not be passing go or collecting any money. Instead, they’ll go straight to probate. So, it’s important to have another person on a bank account before your death if you want to avoid probate.bank account death

So you want to avoid probate—good. But now that you have this information, you may be thinking to yourself, “I can do that myself—lawyers are just too darn expensive.” Well, you might be able to do it yourself, that’s true. But we have seen too many instances where people mess things up to recommend it.

Here’s a fairly common example:

Mom has three kids: Andy, Becky, and Charlie. Andy lives in Little Rock, while Becky and Charlie live far away. Mom starts having heath problems, so she goes to the bank to put Andy on her bank account because she wants Andy to be able to sign checks on her behalf.

When Mom shows up at the bank, she immediately walks up to the first available teller. Does this teller understand Arkansas probate law? Perhaps, but I have yet to meet that particular teller. The teller adds Andy as a joint owner with Mom on her bank account without any explanation about what that means and without explaining the different options.

Mom never knew that there are four ways to add someone to your bank account:

  1. Joint Owner with survivorship
  2. Joint Owner as tenants in common
  3. As a signor
  4. As a beneficiary

In our story, the teller added Andy as a joint owner. Six months later, Mom passes away. Andy is sitting on $60,000 in Mom’s account, all of which is his. He owns it just as much as Mom did before she died.

In a perfect world, Andy divides the $60,000 up according to Mom’s wishes, but things are rarely perfect. Andy’s son got in some trouble, and Andy needed the money to help him out. Andy’s not necessarily a bad guy, but like all dads he’s going to use that money to help his son. Becky and Charlie get nothing.

“Yes,” you say, “but our Mom has a will that divides property evenly among the three siblings.” That may be true, but that money in that checking account no longer belongs to your Mom. Even if Mom expressly mentioned the bank account in the will, the will cannot touch it. It did not pass to her estate, to be divided in the will; instead, it went straight to Andy.

Can you then challenge Andy’s ownership of the account? Of course, but that will require a lawyer to prove that Andy exerted some sort of undue influence over your mother. That’s a hard sell and a lot of attorney’s fees.

What should have happened? Mom should have added Andy as a signor on her account and added Andy, Bob, and Charlie as beneficiaries on the bank account. Then Andy can pay bills and take care of Mom and the money would be split evenly upon her death, without going to probate.

Most probate-avoidance issues are this way. A little bit of advice before you act usually saves you a lot of money in the end. In this case, a few hundred bucks could have saved Becky and Charlie $20,000 a piece.

That’s our business model. We charge you a reasonable fee to help you do the most important things that will end up saving you a bundle in the end.

What is an Uncontested Divorce?

I get a lot of questions about divorce, especially about getting an uncontested divorce. I also get a lot of opinions. Some are correct, but most of them have more to do with TV shows about lawyers and bad advice from relatives than real law. (Not that I’m judging—I learned a lot about doctoring from House, which annoys the heck out of my own doctor.)

uncontested divorceThe importance that people place on whether their divorce is contested or uncontested falls into that category. I get many potential clients who are insistent that he or she has an uncontested divorce. And this is very important to them. It usually means that they think the process will be really easy, and it almost always means that they think the divorce should be cheap. In my opinion, however, the distinction just isn’t that important or meaningful.

A short (promise!) history of Arkansas divorce law is in order. In the past, it was much more difficult to get a divorce. You had to prove certain grounds, and the other spouse could fight you on those grounds. (This is technically still the case in Arkansas, but the grounds for divorce are rarely at issue now. “Grounds” for divorce include things like adultery, separation, insanity, drunkenness, etc.) When an Arkansas law mentions contested divorce or uncontested divorce, this is what it’s talking about. An “uncontested divorce” is one in which the parties are not fighting about whether there are good reasons for divorce. Or, to be a little more specific, the party against whom a ground is alleged has agreed that the other party’s allegations are true.

This is the technical definition of uncontested divorce as compared to contested divorce, which means that it’s not much help. Virtually all divorces are now uncontested. People may fight about money or kids or all manner of things, but they rarely fight about whether there’s a good reason to get divorced.

Many lawyers use the terms differently—to distinguish tough divorces from easy divorces. So, a divorce where the parties agree on everything will be an uncontested divorce in Arkansas. In many instances, anything else is a contested divorce. (And once something is contested, the price automatically goes way up, of course.)

All the emphasis on whether a divorce is contested is, I think, a marketing tactic used to get more money out of clients. Many family lawyers treat this distinction as a binary—an “either-or” situation. It seems that to many Arkansas family lawyers, a divorce is either a $750 issue or an $8000 issue, with nothing in the middle.

But any decent family lawyer knows that there’s almost always going to be some kind of pushback in a divorce. It’s a lawsuit—the parties are going to disagree. No divorce is ever truly “uncontested.” Selling people on this false dichotomy—and then jacking the price up at the slightest hint of (the inevitable) conflict is a bad way to make a living.

The better way to think about a divorce—and the better way to charge someone for handling a divorce—is that it’s on a spectrum of conflict. It’s not either contested or uncontested. It’s not either a $750 divorce or a $8000 divorce. It is always contested; my job is to find out where the conflict lies, charge someone to handle it, and resolve it.

Or, put another way, my job is to take the divorce that might be $8000 and make it cost less. For many lawyers, however, the goal appears to be making every divorce an $8000 divorce.

This is just one of the many ways we try to practice a different kind of Arkansas family law. If you’re in the market for something different, give us a call and we can tell you more about it.

Battery: Good for Christmas Toys, Bad for Christmas

That is:  Getting a Domestic Battery charge is one of the worst ways to spend an Arkansas holiday.

The Holidays (Christmas, Thanksgiving, and New Years, that is) can be particularly tough on families. Money is tight because of Christmas. You’re spending a lot of time around people that you may not like but can’t avoid. You have to eat a lot of mushy food. You know exactly what I’m talking about. We all know that the Pilgrims, baby Jesus, and Auld Lang Syne should be times for joy, but for many families, it just ain’t so.

domestic-battery-holidays

We’ve talked about this before as it related to child custody, but these Holiday blues can also easily translate into a criminal law issue: Domestic Battery. What is Domestic Battery in Arkansas, you ask? Basically, it’s a family fight. According to the law, there are two main things to remember:

  1. The “Domestic” part of Domestic Battery: The conflict needs to be a “domestic relationship.” This is where it gets crazy: A domestic relationship includes anyone that you’ve ever lived with, pretty much anyone that you’re related to, and anyone with whom you’re romantically involved. Yes, that is a lot people.
  1. The “Battery” part of Domestic Battery. A Battery can be either purposefully or recklessly causing physical injury to a person.

It doesn’t take much imagination to see how you could get here quickly. Imagine this scenario: Cousin Sue and Cousin Lilith get into a spirited debate over how much sage to put into the dressing. Sue loves her sage; Lilith does not. Sue and Lillith have (incidentally) been enjoying the holiday punch (aptly named, as it turns out), much of which is Southern Comfort whiskey. Bad idea.

Lilith calls Sue unrefined because of her overindulgence in sage. Sue calls Lillith a slut, which brings back a lot of bad high school memories for Lillith.

Lilith tries to leaves in a huff, but her sister Judy won’t let her get into her car. They yell at each other in the driveway, which causes one of the snoopy neighbors to call the police.

Lllith pushes Judy out of the way as the police are pulling into the driveway. At that point Lilith is charged with 3rd Degree Domestic Battery and taken to jail, where she could face up to a year in jail and a $2,500 fine.

Judy begs the police not to take her sister, but, contrary to what you see in the movies, Judy has no control over what the police do. Judy can’t simply “drop the charges”—they are not her charges to drop.

That’s when Lillith needs to call an Arkansas Criminal Defense Lawyer. Like us, for instance.

How Far Back Does Arkansas Child Support Go?

Going to court is nearly always a scary thing—usually, someone is trying to get some money out of you. Arkansas family court is even scarier because you’ve got both money and relationships at stake. Words like “alimony,” “full custody,” or “relocation” are a guaranteed recipe for ulcers and sleep loss and all sorts of other court-induced misery.

arkansas child support

Here’s one term that many people aren’t familiar with but should probably be at the top of the list: “Retroactive child support.” As you might have guessed, this is child support that is calculated backwards. So just how far back can an Arkansas Child Support judge go?

Here’s where it gets really scary. Like—this is the Arkansas family law equivalent of the point where the music reaches a screeching crescendo and a man with a knife jumps out from behind a door.

Under Arkansas child support law, a judge can award child support all the way back to a child’s birth.

And it doesn’t matter whether you knew you had a child. It doesn’t matter if mom knew where you were but decided to hide your kid from you. An Arkansas child support obligation is an obligation to the child, so neither your ignorance nor mom’s behavior matters.

You can imagine how nightmarish a situation this could be. It’s not uncommon (although, as a family lawyer, I would not recommend it) to meet someone in a bar, hook up, and never hear from the person again.

Now, imagine not hearing from the person for 12 years and then receiving notice that she has opened a case with Arkansas Office of Child Support Enforcement (OCSE). Now you may be on the hook for child support for those 12 years of blissful, presumed-but-incorrect childlessness.

So what can you do? At the risk of sounding too preachy, I’ll simply point out that you can, of course, avoid the situation altogether and not hook up with strangers. But if that’s no longer an option, you may think about one of these options (recognizing all the while that I’m not your attorney and you’re not my client and this isn’t legal advice and even if it was legal advice, it would be foolish to take legal advice from a stranger on the internet):

1. Request a paternity test. Most Arkansas OCSE attorneys will let you have one just because you asked. If not, you may have to request one from the Court.

2. Ignore it and hope it goes away. This is always a very bad idea.

3. Make an equitable argument that mom sat on her rights and shouldn’t be able to enforce them now. This is called “laches” in Arkansas family law (and the law in general). It shouldn’t technically work, but it’s worth a shot.

4. If mom intentionally concealed the existence of the child, you might be able to counterclaim against her for fraud. This wouldn’t directly get rid of your child support, but it might reduce it or, more likely, get you some money out of mom.

5. Request that the retroactive portion of the Arkansas child support be set at the minimum amount. It’s unlikely that you’ve always made the money that you currently make, so it’s not reasonable to set retroactive child support at your current wage. Here are the Arkansas Child Support Charts.

Whatever you do, it’s best to do it now rather than later.

What Happens if I Get Arrested in Arkansas?

The obvious (and, frankly, most important) answer is that you call a good Arkansas Criminal Defense Attorney. You could call our firm, for example. But you already knew that.

But assuming you’ve done that, you still might like to know what happens when you get arrested in Arkansas. To make a long story short: It depends on the crime.Arkansas Arrest Arrested Criminal Defense Lawyer

If the crime is relatively minor, you may simply be issued a citation after the arrest. This is always at the officer’s discretion.  That citation gives you a few important pieces of information. First, it will tell you why you were arrested. (You may ultimately be charged with something different than what you were arrested for, by the way.) It will also tell you when your “plea and arraignment” will be held.

Aside: Reggie Koch (a local lawyer) recently interviewed Little Rock District Court Judge Vic Fleming on what a plea and arraignment entails. You can find that interview here if you’re interested. It’s worth a listen. 

A plea and arraignment is two separate things. The “arraignment” part is an opportunity for you to be told by a judge what the charges are against you. The plea part, as you might have guessed, is an opportunity for you to enter a plea—formally tell the court how you’re going to approach those charges.

In this scenario, you’ll be released without the requirement of posting bail. (You post bail as a way to promise the Court that you’ll come back when you’re supposed to.) You simply go on your merry way.

There’s another situation where you won’t have to post bail for a more serious Arkansas crime, but that is pretty rare. This happens when you’re arrested and the Pulaski County Jail (for instance) is overcrowded and there’s no place for you to go. In this situation, you will be arrested, taken to the Pulaski County Sheriff’s Office for processing, and then be released with information about your plea and arraignment.

If the officer thinks that your crime is serious enough and there’s room for you in the Pulaski County Jail, you will be taken there after being arrested. At that time, something called a “schedule bond” will be issued to you. The next morning, you’ll be arraigned.

If you’ve been charged with an Arkansas misdemeanor, you can then decide whether to plead guilty or not guilty. If you plead guilty, you will probably be released and then given a court date for your sentencing. If you plead not guilty, then the prosecutor and your Arkansas Criminal Defense Attorney (again, I know a good one) will conduct a short bond hearing to set your bond.

If you’ve been charged with an Arkansas felony, you will have to enter a plea of not guilty at the district court level. (This is because district courts in Arkansas don’t have “jurisdiction” over felonies—only an Arkansas circuit court can hear felony cases.) Again, there will be a bond hearing in front of the district court judge to determine an appropriate amount for bond. If there is a victim, the judge will issue a no contact order, which simply means that you are not allowed to contact the person. (Yes, a rare moment where something has a legal name that actually describes what it is.)

At this point, you’ll also need to contact a bail bondsman (we can recommend some good ones) to post your bail. Unless, of course, you just happen to like jail.

Should I get DHS involved in my Arkansas Child Custody case?

This blog may sound like I’m bashing Arkansas DHS or suggesting that they don’t do their best to help in child custody emergencies. It’s not. DHS is very important; it just may not be the right fit for your own case.

We live (thankfully) in a time where we can usually depend on the government if there is a real emergency. If a tornado destroys your community, you can get help. If someone breaks into your house, you can get help. Most of us don’t have a lot of faith in the government, but it’s a relief that someone is there in an emergency situation. The police department or the fire department can come in and quickly diagnose the situation and make it safe again.

Arkansas–DHS

It is only natural, then, that one would want to get the government involved in a nasty child custody situation. If anything is an emergency, then it is a child’s welfare. In Arkansas, that part of the government would be the DCFS (Division of Children and Family Services), which is a branch of DHS (Department of Human Services).

Arkansas DHS is not like the police or fire department. DHS is like more like the taxman. If you have an accounting emergency, you do not want to call the IRS. Instead, you’ll want to call an accountant to fix the problem. The IRS will no doubt be able to help you with your accounting problem, but they’re probably not going to leave it at that. They’ll sniff around and start poking into anything and everything that they can. That’s their job.

DHS’s job is similar. They will investigate anyone and everyone associated with an Arkansas child custody situation. They will make quick judgments about who is a good parent and who is a bad parent because they just don’t have enough time. And they won’t leave you alone once the emergency is over. They have to stay involved, but they have way too many cases. This means that DHS is going to be super busy and super involved in the case. That is, they will have a lot of authority without a lot of information. They will do the best that they can, but that may not be very good.

There are child custody situations where DHS is absolutely necessary. If you know that a child has been abused, you should report it, and you’re not going to be able to avoid DHS. For the child custody situations where you do not need to involve Arkansas DHS, it may not be the best solution. Once you make that call, you are no longer in control.

In my experience, most Arkansas child custody situations are better handled without DHS involvement. If you want to protect your rights and make sure that the situation gets more attention, the best thing to do is to hire your own attorney.

Note: This might be a direct contact with a prospective client—a kind of legal advertisement. I don’t really think it is—you found me, after all—but it’s better to be safe than a sorry. If you have any problems with the information in this blog post or with me, here is some information you might find useful:

“ANY COMPLAINTS ABOUT THIS LETTER OR THE REPRESENTATION OF ANY LAWYER MAY BE DIRECTED TO THE SUPREME COURT COMMITTEE ON PROFESSIONAL CONDUCT, C/O CLERK, ARKANSAS SUPREME COURT, 625 MARSHALL STREET, LITTLE ROCK, ARKANSAS 72201.”

Family law for same-sex marriages

242925-gay-marriageTwo issues have pervaded the internet over the last week or so: gay marriage and the Confederate flag.

This blog’s about legal stuff; if I am the one doing the writing, it’s about family-law stuff. Because I am not aware of any important contributions that the Confederacy made to family law, I won’t comment on the flag issue.

But same-sex marriage—now that’s squarely in a family lawyer’s wheelhouse. Whether or not you agree with it, no one can deny that it is important. It is going to matter. Many things will now be different. Family law (divorce, child custody, and adoption for our purposes) was built around marriage, and now the definition of marriage is different.

Imagine how a personal injury lawyer would feel if the Supreme Court changed the definition of “negligence.” Or how a criminal lawyer would feel if it changed the definition of “intent.” I’m not alarmed, but I am intrigued—how will things be different now that same-sex marriage is the law in Arkansas?

I don’t know, and like all things legal, it’s going to take some time to figure out. Many issues (like the fact that a lot of the laws refer to “husband” and “wife”) aren’t really hard questions. We don’t need to think carefully about those things; we just need a word processor. Here are a couple of the harder ones:

A female same-sex couple is married and brings a child into the marriage. How will the law treat the non-biological parent?

It is well-settled Arkansas law that a child born during a marriage is presumed to be the child of the parties—mom and dad. You can rebut this presumption, but until you do, the law presumes that the husband is, in fact, the father.

In the situation described above, however, we know that the other party is not the father because, well, women can’t biologically be fathers. One party has been artificially inseminated (or simply had sex with a man) and had a child. We know that the non-biological-mother spouse isn’t biologically related to the child. What will the law do with the non-biological-parent spouse if, say, the parties happen to divorce?

I don’t know, but I think it will hinge on whether the presumption of parenthood is based on public policy or biology. If the presumption is based on public policy, then I think non-biological-parent spouse gets the presumption. We know that she’s not “really” a parent, but we will consider her a parent because we think people who are married and decide to bring a kid into the world are good candidates to raise the kid. We also think that the child deserves the benefit of the doubt as to legitimacy.

But if the presumption is based on biology—a child born to a husband and wife is probably biologically the father’s—then the presumption wouldn’t make sense for two women.

A female same-sex couple could get around this by adopting the child, but that places an additional burden on the parent(s) (both financial and legal) to get the adoption. (Interestingly, I also don’t think that the plain reading of Arkansas adoption statutes allows a same-sex couple to adopt a child together. So then there’s that.)

On the issue of challenging this: Marriage isn’t the only fundamental right; you’ve also got a fundamental right to parent. Does this gap in the law mess with that fundamental right? It would appear, on its face, to treat same-sex and opposite-sex couples differently. And that’s probably a constitutional no-no.

Another question:

Will courts give the same weight to a child’s interest in having two same-sex parents (mom and mom or dad and dad) that they have to two opposite-sex parents (mom and dad)?

In most custody situations, courts pretty much assume that it’s in a child’s best interest to have exposure to both parents. Children need a mom and a dad; that’s pretty uncontroversial. Lawyers argue this all the time, and it’s accepted as true unless one of the parents is not fit.

But do children need a mom and mom or dad and dad as much as they need a mom and dad? Put another way: If you’ve already got a mom, do you need another?

It may be that when courts in the past have articulated this need, they were simply expressing the present reality. They said “mom and dad” because that was the only possibility. Courts may simply prefer that children need two parents, regardless of their title or biology.

I don’t think these questions are necessarily new; after all, same-sex couple have been raising children for some time. But they aren’t esoteric anymore.

What is an Arkansas Probate?

The word “probate” comes from the Latin verb probare, which means “to try, test, prove, or examine.” (H/T to Wikipedia.)

This is important for two reasons. First, it illustrates that probate, much like Latin, is outdated and should never be your go-to solution. Also, the definition is spot-on: Probate will both try you and test your patience. Most people (justifiably) fail the test.

Arkansas-Probate

But what is it? Well, I am glad you asked. In the most simple terms, probate is asking a Court to allow someone else to do something with your stuff after you die. A quick example should help clarify: Leo has a bank account, a mortgage, and a car. While Leo is alive, he can do pretty much whatever he wants with his stuff. All he needs to do is sign. So, if he wants to close his bank account, all he has to do is sign. If he wants to sell his home or put someone else on the title, all he has to do is sign. Likewise, if he wants to put his new wife on the title to his car, he can do that through a signature.

Leo recently passed away in a boating accident. He can no longer sign his name to move his stuff around. If there’s no one who is authorized to do something with his stuff, it would probably just sit there until the rapture—perhaps longer. This is bad because we would rather see that money go toward creditors and college educations and other nice things that keep the economy strong. The Arkansas probate process makes sure that this doesn’t happen by appointing someone who has the authority to sign—again, the dead person can no longer sign. By doing this, the Court is giving that person permission to act like Leo and move stuff around.

There is much more to know about Arkansas probate, but everything else builds off that simple concept: Giving someone the authority to sign on behalf of a dead person.

But if you wanted to know more about the process itself or how to avoid it, then follow these links. Or you could just call us. The only thing worse than having to go through probate is having to go through it without a good Arkansas probate attorney.

Putting a face to the “plain language” debate

Lawyers should be servants. This is never easy. In fact, it’s usually pretty hard. The billed hour and the adversarial system and the looming cloud of malpractice does not naturally encourage us to be “others-centered.” We have to serve our clients, but we also have to serve the courts and, in some attenuated way, we have to serve justice. (I trust the conflicts of interest there are not lost on the reader.) And then we have to make living. No wonder the lawyer-servant is so rare.

tremain

I was reminded this week in a poignant way that one way to serve people is by drafting documents in plain language. You know, so the people who paid you (and for whom the documents were drafted) can actually make use of them. Yes, I know—it’s a radical idea. The debate over plain language is not a purely academic question, after all.

Prologue: One benefit of doing all this internet stuff is that people can actually find me—on the internet. Often these are the kind of people who don’t know anywhere else to look but the google. These are folks who don’t know a lawyer or don’t know anyone to ask. I am thankful for these people because they help me remember what it’s like to be on the other side, where the law is (unfortunately) shrouded in mystery.

On to the poignant experience: A woman found me on the internet this week and called to ask a question. She was wondering whether her new mother-in-law could take her daughter on vacation. (She was divorced and remarried and has custody of the daughter.)

The only way to answer the question, of course, was to look at the divorce decree and see if it addressed the situation. So, I asked her if she had a copy of it, to which she replied that she did. I asked her if it said anything about vacations or out-of-state trips.

Her reply: “I don’t know because I can’t read it. I only read on a fourth-grade reading level, and I don’t understand the words.”

Let that sink in.

After seeing a copy of the decree, I could understand her plight. It was full of nonsense—useless recitations, tired Latinisms, recycled garbage from a thousand decrees before. It was unclear on most of the things that matter and bulging at the seams with words that served no purpose. I’m sure the lawyer who drafted it felt very, very smart when he filed it. I hope so, anyway; he surely could not have walked away from the experience with the conviction that he was an effective lawyer.

If someone can’t read, that is one thing. But someone with a fourth-grade reading level should be able to read their divorce decree and understand it. (If not, I don’t think it’s a legally effective decree.  The people who need to rely on it don’t know what in the heck to do with it.) Fourth-graders, after all, can read things like Johnny Tremain, Beverly Cleary, and Judy Blume.

If someone can explain the dangers of silversmithing during the Revolutionary War to a fourth-grader, surely it’s reasonable that I can tell people where there stuff goes and what to do with their kids in an understandable way.