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Liquidation of an Estate Following Death

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Liquidation of an Estate Following Death
NOVA Estate Lawyers – Leesburg, VA

Liquidation in the simplest terms refers to the conversion of hard assets to cash. Liquidation of an individual’s estate does not just occur upon a death. It can also occur when a parent chooses to liquidate assets in order to fund something like the purchase of a second home or a child’s college tuition. Liquidation can also occur as a result of bankruptcy, where assets must be liquidated to pay off debts owed. For purposes of this blog article, we will focus on liquidation as a result of a death.

Liquidation of an estate most often occurs when someone in the family dies, and refers to the disposition of everything owned by that person. It can be divided into two classes: real property (real estate) and personal property (which includes tangible personal property such as a car and intangible personal property such as stock certificates, bonds or CDs).

An estate liquidation is typically held with the purpose of legally clearing out tangible personal property. Depending on the title of real property and whether there are any designated beneficiaries for a decedent’s intangible financial assets, there may also be some need to liquidate these assets.

Often a family will retain legal counsel to assist them with understanding exactly how to distribute the assets of a decedent’s estate if there is no Will or other directive in place, such as a beneficiary designation, that gives clear instruction. This could include: real estate, stocks, bonds, investments, other financial assets, jewelry, heirlooms, furniture, etc. Items that cannot be transferred to a specific beneficiary may need to be liquidated through auctions, estate sales, or donation.

The difference between an estate liquidation and an estate sale is that the liquidation can include stocks, bonds, real property, collections such as coins or fine art, and fine jewelry. Usually the estate liquidation involves the use of professionals such as an estate attorney, CPA, appraiser or Realtor.

Another consideration for liquidation is the payment of debts as well as estate tax, income tax or inheritance tax. An experienced estate and probate attorney can provide necessary guidance to families on how best to address these issues.

Hopefully, the deceased individual prepared an estate plan, to include a Will or Trust, or a designation of a survivor/payable on death beneficiary, to leave clear instructions on the distribution of their estate. If not, the estate would require possible costly probate of most (if not all) of their assets.

Steps to Handling an Estate Following a Death

• Locate any will or trust to determine who has been appointed to serve as executor or trustee.

• Obtain several certified copies of the death certificate.

• Gather the mail and notify any creditors of the decedent (e.g., mortgage company, utilities, credit cards) of the death, and to freeze further activities on any lines of credit other than what will be paid once an executor has been officially recognized by the proper court in the county/city where the decedent died. Never pay any bills with your own money. Most creditors will make a note of the death in their file and give some leeway on when the next payment may be due. In cases where the estate is effectively without assets to pay creditors, none of them should be paid without first speaking to an attorney about the enforceability of such obligations, as it is not uncommon for such creditors to simple write-off these debts as a loss on their books due to the fact that the estate it too insolvent to pay any debts.

• Secure any real or personal property, meaning lock down the decedent’s residence and do not allow family members to remove any items prior to the executor (referred to as an administrator if there is no Will) to qualify and properly itemize all the contents of the residence to the court as required by law. Distribution of assets is a formal process and requires the signing of a receipt by any beneficiary with the receipt providing protections to the estate and the executor should the item(s) need to be reclaimed later for legally-enforceable obligations such as federal and state taxes that the decedent might owe.

• Notify agencies such as the U.S. Dept. of Social Security, U.S. Dept. of Veteran’s Affairs, Office of Personnel Management, or other federal agencies who may have touched the decedent’s life, any insurance companies, and credit reporting agencies such as Experian, Transunion and Equifax, so that no one can use their social security number to obtain new accounts or credit.

• Secure guardians for minor children or dependent adults (if applicable).

Steps to Settling an Estate

• Consult with an experienced estate, trust and probate attorney in the state where the deceased lived at the time of death.

• Check to see if a revocable living trust is in place and whether any assets were titled into it or will be added to it by the decedent’s Last Will and Testament. After qualifying as executor, the executor must follow the terms of the Will, and any trustee must abide by the terms of the trust for distribution of property.

• Typically, the Executor of the Will will be responsible for fulfilling the legal duties under state law, and the administrative tasks such as inventorying property and assets, notification of creditors and payment of debts and taxes. However, if there is a Trustee, they should work together to ensure proper management and distribution of all assets of the decedent occurs.

• If there is no trust or Will, for the deceased’s assets, check to see if the decedent held things jointly with another person who would inherit by right of survivorship, or if s/he named a beneficiary to receive the assets at his/her death, also referred to as a “transfer on death” or “payable on death” beneficiary designation. If not, then all assets of the decedent (with certain exceptions in states like Virginia which follows the “drop like a rock” doctrine for real estate) will be subject to the reporting requirements of probate and be supervised in terms of distribution by the Court (in Virginia, the Circuit Court and its Commissioner of Accounts). This can result in costly additional fees and taxes as well as delays in the ability to deliver inheritance to loved ones who may need financial support. Any surviving spouse should confer with an experienced probate attorney about his or her legal rights to statutory protections involving a family allowance, augmented estate rights, and more.

When faced with the challenge of liquidation arising from the death of a family member or friend, there are many legalities that must be followed. An experienced estate, trust, and probate attorney can guide you through the process, answer any questions you might have, and put your mind at ease.

Contact the Law Office of Patricia E. Tichenor

You have enough on your mind with the death of a loved one; let your estate attorney help ensure the smooth transition of assets and the settlement of the estate. For estate liquidation questions in the Commonwealth of Virginia, contact Law Office of Patricia E. Tichenor, P.L.L.C. located in Leesburg, Virginia. Since 2001, we’ve been helping families set up trusts, revocable living trusts, wills, living wills, and guardianship documents, as well as assisting them with probate/estate liquidation issues. You’ll like our warm, consultative style of interaction and no-nonsense approach to getting things done. Contact attorneys Patricia Tichenor or Camellia Safi today.

Dealing with a Family Member’s Arrest

Dealing with a Family Member’s Arrest

Dealing with a Family Member’s Arrest
NOVA Estate Lawyers – Leesburg, VA

You’ve received that phone call where the loved one on the other end of the line says, “I’ve been arrested.” Now what do you do?

Remain Calm

The first recommendation is to remain calm. Your loved one needs your strength now, so help them calm down as well. Ask them to be respectful with the authorities but to let them know that they should invoke the right to remain silent and that family is going to retain an attorney for them. Assure them that you will work on their behalf. It is not the time for blaming, shaming, yelling or escalating the situation in any way. If you were present at the arrest, you yourself must be respectful to the police office but are not required to divulge any information to them or answer questions.

Learn the Details

Find out at which jail your loved one is being detained, and on what charge. Give this information to an attorney that you have hired to represent your family in this matter. Phone calls are recorded at the adult detention centers in Virginia if you loved one is calling you on their pay phone system, so absolutely nothing should be said by either of you about the facts surrounding the case; or anything else that could be incriminating to you or your loved one. Address only the matter or arranging for legal counsel and how your loved one is holding up.

You may or may not want to contact other loved ones. If you do, inquire as to their resources that may be able to help.

Know Your Rights and Those of the Police

A loved one who is arrested has: (1) the right to remain silent; and/or (2) the right to speak to an attorney. But he or she must tell the police (invoke) that they are exercising those rights if they intend to have them honored. If they start talking about the case, they may waive those rights simply by choosing to do so—even after first invoking them. No questions should be answered without the attorney present, regardless of whether the alleged crime is or is not a serious one. They should know that in questioning, the interview is either recorded, or the arrested party may be asked to sign a statement confirming that the interview record is accurate.

The police will most likely photograph the arrested person and take fingerprints. They may also legally take a DNA sample or swabs of the skin on the arms and hands. If they want urine, blood or dental impressions, it requires the permission of the person, unless the arrest is related to driving while under the influence of drugs or alcohol.

An arrested person can be held for up to 24 hours as a suspect or “person of interest.” After that time, they must be charged with a crime or released, unless a request for an extended incarceration is requested by authorities for 36 to 96 hours if the person is suspected in a serious crime. Those involved in acts of terrorism can be held without charge up to 14 days if arrested under the Terrorism Act.

After questioning, the police may release your relative either without charge or on bail (secured or unsecured by a bond). If bail is not granted, the person may have to remain in police custody until the family can obtain an attorney to file a motion with the court to have a bail amount set by a judge.

At an arraignment hearing, charges will be read and the bond amount and any conditions, such as the bond amount, will be set. If bail is met, the arrestee will be asked to sign a ”signature bond” that states that he or she recognizes his or her obligation to appear in court. You may help them pay the bail.

The information in this blog post pertains mostly to adults who are arrested. Some different practices may come into play with minor children. For example, the child may have the right to an attorney present during questioning, but not a parent. An experienced family law attorney who has also handled criminal law matters can help you ensure your loved one’s rights are protected.

Contact Your Attorney

Make contact with your attorney as soon as possible. Arrange for an attorney to help you with the immediate issues including representation during questioning and at the arraignment hearing. You attorney will also advise you as to the steps you need to take.

Do not sign a long-term agreement with an attorney until you know what the charges are and whether you will need their help long-term. Beware of lawyers who try to push you into an extended engagement immediately or want to rush you to a plea bargain.

Beware also of friends and family who try to give you legal advice. Stick to the licensed attorney’s recommendations. A criminal defense attorney, unlike a friend or family member, is the only one who can offer attorney-client protection for the statements made by the arrested person, and the only one who cannot be called to testify against the client as to what the client said about the events leading to his or her arrest. A family member is always open to being subpoenaed to disclose what the loved one shared. Thus, the reason to tell them nothing – even to you – and to save all discussions about their case for the attorney.

Gather Funds

You will need money to post bail or to pay attorney fees, so take action to gather the necessary funds. Criminal defense attorneys typically charge up-front deposits, and sometimes a flat fee, depending on the seriousness of the crime.

Don’t Feel Guilty

People from any family can get arrested, so don’t get caught up in feelings of guilt. Deal with the shock and begin the process of rectifying the situation as best you can. And be aware that others, including family, friends, neighbors, co-workers, etc., may act in an accusatory way or say things that might be hurtful upon hearing of the arrest. Don’t let them incite and distract you; stick to your plan and follow the legal advice of your attorney.

Contact the Law Office of Patricia E. Tichenor

Attorney Patricia E. Tichenor spent a number of years handling criminal cases while practicing family law. The Law Office of Patricia E. Tichenor, P.L.L.C. is often called upon to help with highly-emotional issues such as family member arrests, and can provide legal advice and representation in a caring and competent manner to families in Northern Virginia. If your loved one has been arrested, contact attorneys Patricia Tichenor or Camellia Safi today.

Protective Orders for Spouses or Children in Virginia

Protective Orders for Spouses or Children in Virginia

Protective Orders for Spouses or Children in Virginia
NOVA Estate Lawyers – Leesburg, VA

A protective, or restraining, order is a court-issued legal document designed to protect the petitioner from of violence, abuse and threats for a fixed period of time. It is designed to protect the safety and health of any person who is placed in fear or threat of bodily injury.

3 Types of Family Abuse Protective Orders in Virginia

In the Commonwealth of Virginia, there are three types of protective orders aimed at protecting spouses or children, including:
Emergency Protective Order
This type of protective order is requested in emergency situations and therefore can be issued by any court, Juvenile or Domestic Relations judge, or magistrate at any time of the day or night. It can also be requested by a law enforcement officer without notifying the alleged abuser. Expires at the end of the third day after issuance or the next day court is in session (whichever is later).
Preliminary Protective Order
This type of protective order is issued by a Juvenile and Domestic Relations Court when the petitioner shows proof that they are in immediate danger from the alleged abuser, who does not need to be notified prior to issuing the protective order. The petitioner must either provide an affidavit or testify under oath, and the order expires 15 days following the day it was issued or until a full hearing.
Full Protective Order
This type of protective order is issued following a full hearing, when the alleged abuser is given the chance to be heard in court. Its duration can last up to two years.

When protection is first issued, it is only temporary, and is called a PPO, or Preliminary Protection Order. It will include a date indicating when you must return to court, generally in about 15 days, at which time the judge will determine if a Full Protective Order is required. Both the petitioner and the abuser are asked to be present.

What a Restraining Order Can Do

A restraining order can:
• Order the abuser to cease contact with you or other people in your family, in person, by telephone, at home or work, or anywhere requested within the order.
• Demand that the abuser vacate the shared home
• Grant custody of minor children
• Order child support and spousal support
• Order payment for costs resulting from abuse, such as household bills, medical treatment, loss of earnings, etc.
• Order professional counseling for the abuser

How a Protective Order Can Help Victims of Family Abuse

All types of protective orders in Virginia can prohibit further abuse, prohibit any contact by the defendant with the victims of abuse, and remove the defendant from the home in which the victims live (without affecting the property’s title).

Preliminary and full protective orders can also grant the victims the sole use of a motor vehicle either owned by the victims or by both the petitioner and defendant (without affecting the vehicle’s title), as well as order the defendant to provide housing for the victims.

Do Not Hesitate to File a Protective Order

If you or your children are threatened, or if a member of your family or household harms you in any way, do not hesitate to file a petition against them in your local Juvenile and Domestic Division. However, as this legal document can only protect you if the abuser respects it, call 911 immediately if you feel you are in any type of danger.

Every day the media is flooded with another instance of family-related violence. Don’t let the next story be yours.

Contact Your Family Law Attorney

For information or any advice regarding family abuse or protective orders in Virginia, contact attorneys Patricia Tichenor and Camellia Safi at the Law Office of Patricia E. Tichenor, P.L.L.C. We can advise you on the best methods to keep yourself and your children safe, and on the next steps to take to ensure ongoing protection. Contact us today.

Legally Changing Your Name in Virginia

Legally Changing Your Name in Virginia

Legally Changing Your Name in Virginia
NOVA Estate Lawyers – Leesburg, VA

There are a number of reasons people change their name: marriage, divorce, adoption, escaping domestic violence, privacy/anonymity, difficulty in spelling, ethnicity, or for no other reason than they choose another. Wanting to change your name, and legally doing so, involves—no surprise—paperwork and fees.

Getting Married or Divorced
Virginia allows people to change their last name (surname) when applying for a state marriage license. Hyphenated names are also allowed. After the marriage, the valid marriage license serves as proof of name change.

In a divorce, name change can be accomplished as part of the regular divorce process. Under Virginia law, a divorce court can restore a former last name with the final divorce decree, when asked to do so. If the name being sought is not a restoration of a spouse’s former name, they can file a separate Petition for Name Change in Virginia, as provided by a statutory law separation from Virginia’s divorce statutes, and obtain a new name. The latter option may be favored in situations of domestic violence where the spouse does not want the soon-to-be ex-spouse to know the new name sought nor obtain their endorsement (or that of their attorney) on the Order of Name Change.

Petitioning a Name Change
According to Virginia Code, you may not seek a name change for fraudulent purposes, like to avoid debt or defraud creditors, or if the new name will infringe on the rights of others.

You must submit your name change to the Circuit Court in the county where you live, and must have lived in Virginia and the city or county of application for at least the past six months. Name change documents include a notarized Petition and Order that are presented to the Court. If the Judge grants your Order requesting a name change, you receive a certified copy of the Order.

Changing the Name of a Child or Ward
The Court looks at the best interest of the child when a name change is requested, and both parents (if living and not otherwise having had their legal rights terminated) must consent to the name change of a child or ward. If a parent’s location is unknown, notice through a newspaper publication, called an Order of Publication, may be used as a valid substitute for obtaining consent. If the parents fail to appear at the hearing date and time noticed in the newspaper, the Court will grant the name change so long as it finds the change to be in the child’s or ward’s best interests.

Avoid Mistakes in Name Change Documents
The Circuit Courts of Virginia and the Virginia Supreme Court website provide basic Forms that a person may use to accomplish a Name Change. However, filling out your name change forms correctly is of paramount importance. There is a format to follow, and all previous name changes (including any from marriage) must be included. Both the Petition and the Order must be signed by the petitioner and the Petition must be notarized. Any mistakes in information or formatting will delay your name change and require submission of new documents.

Places to Notify of Your New Name
When you’ve made a name change, you will want to notify the following: driver’s license, social security administration, Internal Revenue Service, U.S. Postal Service, U.S. Passport Office, and Voter Registration. In addition, you will need to update your information on bank accounts, insurance records, medical records, utilities, legal documents, wills, etc.

Do You Need an Attorney in Order to Change Your Name?
You don’t need a lawyer to legally change your name, however, you certainly are advised to consult one to ensure that your name change documents are prepared correctly and otherwise done legally. Many law offices, including the Law Office of Patricia E. Tichenor, PLLC, offer such services at a flat fee (rather than an hourly fee rate).

Contact Your Family Law Attorney
To discuss the legalities of changing your name, contact the family law attorneys Patricia Tichenor and Camellia Safi at the Law Office of Patricia E. Tichenor, PLLC. Contact us today.

Child Support & Enforcement in Virginia

Child Support & Enforcement in Virginia

Child Support & Enforcement in Virginia
NOVA Estate Lawyers – Leesburg, VA

From the perspective of a non-custodial parent paying child support, it often feels like a continuing injustice to be relegated to barely seeing his or her children full-time while carrying the financial burden of providing regular monthly support to the children until their age of majority. The child support order determines who will pay for a child’s basic support and medical care, and normally it is the non-custodial parent who must make the regularly-scheduled payments to the custodial parent.

In addition, if the non-custodial parent does not make the regularly-scheduled payments, the custodial parent has the right to file an enforcement action with the court, asking the judge to force the delinquent parent to make the payments. The failure to follow a child-support order can also result in the non-custodial parent being held in contempt of court and fined or sent to jail, with possible criminal charges brought if the nonpayment extends.

Child Support Enforcement Methods
In Virginia, one method for enforcement of a child support order is provided though the Virginia Department of Social Services, Division of Child Support Enforcement (DCSE), which can result in:
• The withholding the non-custodial parent’s income from his or her paycheck, social security, workers’ compensation, unemployment payments or veterans disability compensation
• The placing a lien(s) on the delinquent parent’s real estate or personal property
• The garnishment/seizure of the non-custodial parent’s tax refunds (state and federal)
• The suspension of the non-custodial parent’s driving license
• The denial of a passport
• The reporting of the delinquency, if a judgment is entered against the non-custodial parent, to credit bureaus
• The court’s entry of orders of contempt (civil or criminal), which can possibly lead to a jail sentence; and
• The use of a bench warrant for arrest, including extradition from another state if appropriate.

In Virginia, upon entry of a finding of contempt, interest will also added to any past-due payments at the rate of 6% per annum. Another method of enforcement is for the custodial parent to hire an attorney to immediately file for a hearing to determine if the non-custodial parent is in contempt, which can result in an award of the custodial parent’s legal fees to be paid by the non-custodial parent on top of the child support arrears already owed by the non-custodial parent.

If the issue goes before the judge and the court determines that the non-custodial parent was capable of paying, that parent can be held in contempt of court, with the above-listed penalties. In addition, this parent could be charged with a misdemeanor or felony, and face jail time.

If the non-custodial parent moves out of Virginia, the child support order can still be enforced through the Uniform Federal Family Support Act in any other U.S. state. For missing parents, the federal government utilizes a Federal Parent Locator Service.

Can’t Afford the Child Support Payments?
If the non-custodial parent is truly struggling, or unable, to make child support payments, he or she should contact an experienced family law attorney to determine what motions might be filed with the court to obtain a temporary reduction, suspension or modification of his or her current support payment, and to set a hearing to obtain a permanent order that may reduce monthly child support moving forward. If the non-custodial parent cannot afford to consult with or hire an attorney, he or she may file for a review with either DCSE or the court directly. If granted a modification, then any reduction (as mandated by Virginia statute) will be retroactive to the date of any court filing to seek modification.

Contact Your Family Law Attorney
If you have questions about Virginia’s child support laws, your local family attorney in Virginia, the Law Office of Patricia E. Tichenor, P.L.L.C., is there to help. We are conveniently located near Loudoun Hospital in Leesburg, Virginia to serve clients throughout Northern Virginia. Please contact attorneys Patricia Tichenor or Camellia Safi for advice.

The Law Office of Patricia E. Tichenor, P.L.L.C.
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(703) 669-6700

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