Category: Estate Planning

Power of Attorney legal document with pen and reading glasses.

Power of Attorney and 5 More Legal Terms Everyone Should Know

You don’t need a law degree to understand some legal terminology, and in fact, there are some basic legal concepts everyone should know. For instance, “power of attorney” is a legal term many people seem to recognize. But what can it be used for and how exactly does it work?

Warren Allen LLP has experience litigating cases in several practice areas, and there are certain legal concepts that are relevant across the board. Here’s an overview of the most relevant and useful legal terms with which you should familiarize yourself.

1. Power of Attorney

A power of attorney (POA) is a legal document that grants someone else the ability, or power, to act on your behalf. A power of attorney can be executed for a limited purpose, such as one specific matter, or for a limited period of time. It may also be executed so that your representative has broad authority to act on your behalf for a range of legal matters.

For instance, let’s say you’re closing on a home, but you’re currently living in another city and are unable to attend the closing. You may execute a limited POA giving your spouse or attorney the ability to sign the closing documents on your behalf for that particular matter only.

On the other hand, you may want to grant a trusted friend or family member the long-term ability to act on your behalf in all legal matters. In this instance, you would execute what’s known as a durable POA. A durable POA in Oregon remains in effect indefinitely or until the power is revoked by the principal. In fact, an executed POA in Oregon is considered durable unless the POA expressly states something to the contrary.

A healthcare POA can also be executed if you want to designate someone to make medical decisions on your behalf. Even if you’re in good health, a healthcare POA is something you should consider in the event you become incapacitated and need someone to act on your behalf. For instance, you may want to communicate your feelings about life support to the person you designate as your healthcare POA and have them respect your wishes should you ever be unable to make your own medical decisions.

2. Retainer

A retainer refers to the fee that you pay to retain an attorney. An attorney may charge an hourly fee or a flat rate, depending on the legal issue at hand. If you are charged an hourly rate, you more than likely will have to pay the retainer before your attorney begins work on your case. Essentially, this is a good faith payment or a deposit of sorts.

The attorney then places that money in a trust account and accesses the funds as needed for expenses and services rendered. Should you have any money left over once the work is complete, your attorney will refund you the difference between the retainer and the amount of accrued expenses. Likewise, if the retainer does not cover the full amount of expenses, you will likely be responsible for paying the difference.

You may also choose to have an attorney on retainer, which is slightly different. If you have an attorney on retainer, you pay the attorney to be available for a specific period of time to answer questions or provide legal advice about specific matters. For instance, if you are a landlord or management company, you may want to have an attorney on retainer to answer questions about fair housing laws, eviction proceedings, or landlord/tenant disputes.

3. Liability

Liability refers to responsibility for a particular action or outcome. In personal injury law, for example, determining who is liable for an accident essentially means determining who was at fault. If a person is found liable, they will likely have to pay damages to the injured party. In some cases, who is liable isn’t entirely clear-cut, and it may be helpful to have a personal injury attorney acting on your behalf.

4. Damages

If you are found to be the liable party in a legal dispute, you will likely be responsible for paying damages—a monetary amount that is either agreed upon by the involved parties or determined by a court of law. Damages can be either punitive or compensatory.

The latter compensates the person for medical expenses, property damage, loss of income, and the pain and suffering they endured as a result of the injury. Punitive damages, on the other hand, are meant to punish the liable party.

For instance, a judge may award punitive damages on top of compensatory damages in a personal injury lawsuit. Punitive damages are meant to have a deterrent effect on the responsible party so they will refrain from any future reckless or negligent behavior that may have led to the incident in question.

5. With/Without Prejudice

Some legal matters may be settled out of court. But in other instances, you may need to file suit against someone to resolve a dispute. If so, a judge will evaluate both sides of the argument and either allow the case to proceed or dismiss it.

If a judge dismisses a case, it will be dismissed with or without prejudice. If the case is dismissed with prejudice, it means the judge has made a definitive decision to not allow the case to proceed further.

If a judge dismisses a case without prejudice, it means that the suit can be refiled with the court in the future. A judge could dismiss a suit without prejudice if certain revisions need to be made to the original filing or if more information is needed before proceeding.

6. Probate

When a person dies, probate is the process in which the person’s will is evaluated and verified before their property or assets are distributed. The probate process ensures the will is legitimate and that it is honored according to the deceased person’s wishes.

If a person dies without a will, a probate court will decide how the assets should be distributed. This can often be a long and drawn-out process, especially if there’s a debate about who should get what. That’s why it’s all the more important to draft a will before you die.

If you want to learn more about estate planning, Warren Allen LLP can help. From obtaining a power of attorney to drafting a last will and testament, we will provide you with sound legal advice and counsel. If you’re dealing with a complex legal matter, make sure you have an experienced team like Warren Allen LLP by your side.

 

Last will and testament legal document with fountain pen.

What Do Probate Lawyers Do?

One of the most loving actions a person can take while alive is to give time and careful thought to estate planning. This planning can ensure your assets are passed on as you want them to be and taxed as little as possible, making the decisions after death much easier and simpler for a grieving family. Even with careful planning, questions can still arise after your loved one dies, and it can be necessary to have a probate lawyer help you through the process of settling an estate.

When considering Portland probate lawyers, education, background, and experience are critical. Warren Allen LLP is a full-service local firm with a long history of deep community roots and exceptional client service. Our lawyers have the professional credentials and depth of experience to help you know your rights and responsibilities in the probate process.

At this point, you might be asking if you even need a probate lawyer. In this article, we’ll walk through what probate is, what a probate lawyer is, and what they do. Understanding their important role in how an estate is settled can help you make the best decisions for you and your loved ones’ future.

What Is Probate?

If someone dies owning property, the question of who will own the property next needs to be answered. Probate is the legal process of determining the person or people who will own the property after the decedent, the person who died, assessing assets, debts, and taxes, and distributing what’s left to beneficiaries. This can also be a lengthy process lasting from a few months to over a year. Statutes guiding the process may vary from state to state.

What Is a Probate Lawyer?

A qualified probate lawyer in Portland is an attorney who specializes in estate law to assist clients in all matters related to property, inheritance, and estate planning while still alive and to help administer or oversee the estate after death. A qualified probate lawyer should have successfully accomplished an undergraduate degree and a Juris Doctor, or law degree, from an accredited law school. They also need to have passed the bar exam to practice law in their state. Depending on the state, additional certifications could be needed. Not every lawyer specializes in probate, so understanding a lawyer’s background and experience can help you make the best decision for you and your loved ones.

When Is a Probate Lawyer Needed?

A Portland probate lawyer is needed when an executor or personal representative decides they need legal support to successfully administer the estate they’re entrusted with and avoid any liability should mistakes happen in the process. In many cases, it comes down to personal comfort level. Generally, the more complicated the estate, the more likely a probate lawyer could be necessary. Establishing a probate lawyer as part of your estate planning can make this decision easier. The probate lawyer could be the same lawyer who helped with the estate planning.

It’s possible to act as executor without an attorney, but it does take time, attention to detail, and organization. Executors often have their own full lives to manage in addition to settling the estate. While some estates can be settled without issue, it can be helpful to have additional support during a stressful time to take away guesswork or simplify complicated processes.

Additionally, if the estate is quite large or the debts exceed the value of the estate, a probate lawyer could be necessary to sort out the priorities and obligations. A Portland probate lawyer could also be needed when someone dies without a will and interested parties want their interests represented through the court-supervised probate proceeding.

What Does a Probate Lawyer Do When There Is a Will?

The simplest situation is when the decedent leaves a will that can be authenticated and is uncontested. When this happens, an estate may not need a court-supervised probate proceeding to be settled, and a probate lawyer can help you understand if this is the case. Their work can also look like a consultation, where they only help the executor understand legal definitions and deadlines or answer questions when unexpected issues arise.

In other circumstances, the probate lawyer could provide comprehensive services that provide support at every step of the process, from filing death certificates to the final distribution of assets to heirs or beneficiaries. Should conflicts arise between parties, the probate lawyer could be critical to mediating and resolving issues. A probate lawyer could also interact with the probate court when court permission is needed for various actions.

Here is a list of some of the most common things probate lawyers do:

  • Locate and secure assets such as insurance or retirement plans
  • Appraise and sell estate property, including real estate
  • Retitle for heirs or beneficiaries if the property isn’t sold
  • Communicate with creditors and settle debts
  • Determine final income tax returns and file
  • Understand potential state or federal estate taxes or inheritance taxes
  • Oversee the distribution of assets to heirs and beneficiaries
  • Validate or dismiss claims against the estate
  • Interact with probate court when necessary
  • Manage the flow of paperwork and deadlines
  • Mediate conflict between interested parties

What Does a Probate Lawyer Do When There Is No Will?

If the decedent died intestate, meaning they did not have a will or trust, the state statutes will determine how the estate is settled through the probate process. States have laws that govern intestate succession, or how assets are distributed in the absence of a will. Certain assets, such as insurance or a 401(k), will likely have a beneficiary named and will pass directly to the named beneficiary.

For assets that don’t have an established direct line of succession, concerned parties might benefit from a probate lawyer as they navigate the probate proceedings that determine the appointment of a personal representative or estate administrator, learn the legal heirs, and understand how the assets, debts, and taxes will be settled. Even when there’s no will, a Portland probate lawyer will still do many, if not all, of the actions in the list above.

 

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