"Experience And Integrity Make All The Difference"
BRUCE N. SECRIST, Attorney at Law
LawTalk


Sitting on Your Rights...                                                                      

...can be a problem.  Does someone owe you money? Did someone defraud you or a loved one? Did someone build a fence on your property? Was your car damaged or your body injured through the carelessness of someone else's actions? Were you wrongfully discharged from your job? Did you get injured at work?  All of these are examples of where the law may give you a cause of action or a "right" to pursue recourse through the courts.

All of these situations have limitations however. If you are wronged, the law imposes upon you a duty to pursue recourse in the courts within a given time frame or lose that right. Statutes of Limitations can vary from months to years but one thing is for sure, once you lose that right you can't get it back. If you suspect that you may have a cause of action for any of the above, or any other, seek legal advice to determine if you in fact have a claim and when the statute of limitation expires.

Adverse possession is a perfect example of the application of a staute of limitations. If your neighbor builds a fence ten feet onto your property, you have a right to go to court and force him off your land. If you delay and wait too long to take action, you can lose your right to remove him and his fence. By default he has just taken ten feet of your property because you now lack the ability to have him removed. He has become the owner by adverse possession.


Another Marital Perk                                                                                

Some states, including Missouri, allow married couples to own property as tenants by the entirey. In those states, if the name of both spouses appear on the title to an asset, it is presumed to by owned as tenants by the entirely.  Co-ownership with someone other than your spouse does not allow that asset to be owned as tenants by the entirety.

So what? This can become a big deal when it comes to creditor protection. The creditor of just one spouse cannot collect that debt against property owned by both spouses. Keep in mind that if both spouses owe money to the same creditor, that creditor can collect the debt from property owned in tenancy by the entirety.

Example. John and Mary are married and own a home together. Their deed says that it is owned by John and Mary, husband and wife. In addition, John owns a car that is just in his name. He owned it before he married Mary and has never added her name to the title. John has a credit card just in his name. He can't pay it and gets sued by the credit card company. The credit card company gets a judgment against John for $10,000.00 and is now trying to enforce that judgment against John to see that it gets paid. The credit card company can come after John's car to apply it to the judgment but cannot touch the house.  They can only come after assets titled in John's name only.

There are other reasons, including retaining the nonmarital status of property, why a married couple may want to own assets separately rather than jointly with a spouse as tenants by the entirety. For liability/creditor protection however, joint ownership with a spouse can be a good idea. Consult with your favorite legal counsel to see what you should or should not do.

Should you have a beneficiary deed?                                                         

If you own real estate, consideration should be given to creating a beneficiary deed, sometimes referred to a transfer on death deed.  Only about a quarter of all states recognize beneficiary deeds.  Missouri is one of those states. A beneficiary deed allows you to transfer ownership of your real estate to another but the transfer is delayed until your death.  While you are alive you can terminate the beneficiary deed at any time.  It is a fairly simple, inexpensive way to pass ownership of your real esatate to your heirs upon your death and bypass probate court. Immediately upon your death your designated beneficiary becomes the owner.

Sound too good to be true?  It can be.  First of all, passing ownerhip of your real estate to your heirs through a beneficiary deed does not allow you to avoid your creditors.  If your creditors uncover the fact that you transfered ownership of real estate after your death in this fashion, they can pull that asset into your estate and use it to satisfy your debts.  Beneficiaries therefore need to be careful with what they do with that asset after your death if you leave bills that need to be paid.

Who are your heirs?  That too can be a concern.  If you have minor children, you can create more problems than you hope to solve by designating them as beneficiaries.  If you have multiple heirs, problems can arise with how the property is to be handled after your death.  For example, what if you have four adult children and you name all four as beneficiaries on your beneficiary deed?  Upon your death, your four children are joint owners of that property.  They must now agree on whether to keep it or sell it and what price to sell it for.  Should it be repaired, should it be rented, etc?  In addition, each of their spouses must also sign off if the property is to be sold.  You now potentially have eight people that must agree.  If agreement cannot be reached, someone will have to file a court action to order the property sold.  What if one or more of those heirs have creditor problems, is going through a divorce or bankruptcy? More potential complications.

Many of these problems can be solved by designating your living trust as the beneficiary of the real estate rather than your heirs.  If you don't have a trust then a beneficiary deed may not work for you under the above circumstances.

Give it some thought before you sign on the dotted line.


How Do I (or should I) Avoid Probate Court?                                       

While there are a multitude of issues that motivate people to engage in some degree of estate planning, one of the most common is the desire to avoid probate court.  After a discussion with clients about the probate court process, most elect to avoid it if possible.  

Generally speaking, if you die with property titled in just your name, a probate estate will have to be opened in order to make sure your creditors are paid and to pass those assets on to your heirs.  There are multiple planning technics available to avoid probate court.  Just how important is it to arrange your estate in order to avoid probate? It all depends on what best suits your situation. After considering the following, some clients actually elect to have their estate go through probate.

1.  The probate court doesn't keep half, a third or even a fourth of your estate. If I had a dollar for every client who thought that, I could retire a little earlier than planned. Your estate is assessed court costs but they are usually very minimal.

2.  If you create a trust to hold your assets or create a transfer on death (TOD) or pay on death (POD) title, thereby avoiding probate, you cannot avoid paying creditors after you die.  Trusts are not debt or creditor avoidance instruments.  They are probate avoidance instruments.  Even if you figure out a way to avoid probate, your creditors are still entitled to be paid.

3.  The one thing that the probate court can offer is some oversight. The probate court requires that inventories be filed, oversees the approval and payment of debts and division of assets to heirs.  The attorney and personal representative do most of the work but the probate court oversees and approves all of these actions. If you fear a contentious situation amoung heirs following your death or if you do not have someone with which you feel comfortable to administer a trust, probate court oversight can be a blessing rather than a curse.  Most probate avoidance technics don't have this kind of oversight.



What is accomplished with estate planning?
                                        

What does the average person think when they hear the term "estate planning"?  I'm thinking that most don't have a full appreciation of all that falls within that definition.  An estate plan can be very limited in scope or accomplish multiple goals.  The size of your estate, the kind of assets which make up your estate, your concerns about creditors and liability, the size, age and composition of your family, how your family does or does not get along, where you live, care for your minor children if you are unable, your need for privacy, and many other factors have an impact on what type of estate plan best fits you. There are very few people that could not benefit from some form of estate planning.

As part of an estate plan you can avoid the time and expense of probate court upon your death, in the alternative you can insure your estate goes through probate for oversight purposes, protect assets when marrying for a second, third, etc. time, provide for the physical and financial care of minors or aged parents, create safeguards for squabbling family members, prepare for the infirmities of old age, minimize estate taxes, protect assets from creditors, etc.

The best possible scenario for an attorney is for no one to plan their estates.  The resulting legal work upon a death or disability would be Christmas in July for the local bar.  Do yourself and your family a favor by exploring how estate planning can benefit you.



...and I'm not so sure about you!
5/31/2013 1:20:13 PM
As they say, "you and I are the only two people that can be trusted and I'm not so sure about you."  As scarce as it may be, trust is a valuable commodity that we rely on numerous times every day.  Try a day without it.  We throw our trust around like bad grammar.  You trust that your alarm will go off in the morning.  You trust that your fellow driver, whom you have never met before, will obey the rules of the road. You trust that your bank will pony up your money on deposit whenever you ask. You trust that Starbucks will deliver you a cup of coffee free of anything that will make you sick.

We tend to trust and rely on certain things because over a period of time they have proven reliable and worthy of trust.  We get to a point that we don't even consider not trusting them.

We are also confronted now and then with situations that do not arise every day.  Unplowed ground.  You find yourself in a place or situation where you have never before been.  One of those situations is being smack dab in the middle of a legal issue.  You may google all of the online legal experts and still feel the need to seek legal assistance.  There is something about that legal issues web site you stumbled across "Steve's Legal Advice and Pet Grooming" that gives you pause.  Really? Did I just type that? Pause/Paws???  You are just not comfortable relying on cyber advice being posted by a guy with a computer in the back of a 1988 Plymouth Voyager who knew someone who was related to a guy who once thought he had a similar legal issue to solve your legal delimma.  You make the wise choice. You decide to consult with a real lawyer.

Your next issue? How do you find the right lawyer that you can trust?  Good question. I know lots of lawyers (That is the perk or curse of being a lawyer I guess.) and that would not even be and easy question for me to answer. I tend to overthink things at times and would therefore endlessly ponder questions like: What were his grades in law school? Is that a real diploma on his wall? Was he in class the day they covered this? How many times did he have to take the bar exam before he passed?  Do the judges like and respect him? Above all else, is he really looking out for me and only me?  Does he have bills to pay or a grudge against the lawyer on the other side and is that influencing his advice to sue or not to sue, to settle or not to settle, to create a long complicated document or something short, sweet and to the point?  Human nature being what it is, all are spot on questions. It's all about trust.

Your legal issues are simplified if your lawyer is someone you can trust. If he has deomostrated to you that he puts your best interests first in every bit of advice he gives.  He does not tell you what you would like to hear but what you need and should hear.  He would give his mother or father the same advice he is giving you.

I sympathize with those who pick a lawyer off the internet or out of the phone book and have no other basis from which to exercise that trust.  In a perfect world you would get to know and understand your lawyer before you decided to entrust your legal issues to his care.

I have always strived to do my best to make clients feel that they can trust. That we are on the same team with one goal; that which best serves the client's interest.  I have often found that this trust is generated not in the office, yellow pages or on a web site but within the community, at the ballpark, at school, at home and everywhere else that others can really see what you are about.  

Years ago I was handling a long and complicated business issue for a client.  He was going to be out of the country for a couple of weeks and he was worried about not being able to sign something if needed while he was gone.  This was in the day before email and not everyone had a fax machine readily available.  He reached over my desk and pulled out about a dozen sheets of clean typing paper and signed the bottom of each one.  He said, "Here you go, is twelve signatures enough? Use it for whatever you need until I get back." While the vote of conidence he showed in my ability to put his interests first and do nothing with those signatures that he would question was appreciated, I had to let him know that for many reasons that wasn't a good idea and convinced him to tear them up.  You need to have that same level of trust and confidence in your attorney.

If you desire to retain a screaming, yelling, frothing at the mouth, self proclaimed hot shot hired gun attorney, I wish you the best of luck.  If you desire something different I also wish you the best of luck for it is probably easier to find the former rather than the latter.

How Did You Get That Job? Your Honor!
5/31/2013 6:23:10 PM
One can become a judge by winning an election like any politician or through a merit selection process. Missouri has been the leader in the merit selection process for years.  Many states model their judicial selction process after the Missouri Plan.  There have been some recent movements to try to abandon Missouri's merit selection process and return to slection by popular vote.  

If the issue again comes up for consideration, take the time to educate yourself about the differences in the systems and what is being proposed.  A change could have a significant impact on your community.

Following is an article that I authored which appeared in the Joplin Globe in April of
2012.
http://www.joplinglobe.com/editorial/x1378303897/Bruce-Secrist-guest-columnist-It-s-not-perfect-but-Missouri-Plan-makes-sense

Online legal advice. Caveat Emptor!
6/5/2013 11:50:30 AM
Caveat emptor is Latin for "let the buyer beware". In layman's terms, buy it if you want it and don't buy it if you don't.  You are acquiring it "as is" and if it breaks, doesn't work or you otherwise aren't satisfied......too bad!  You clearly should keep caveat emptor in mind as you search the internet for legal advice.

Millions of people search the internet everyday for all kinds of advice.  Heck, me and Google have remodled an entire house, fixed a leak in a pool, and self diagnosed more than a few medical conditions over the past few years.  I''ve often wondered about the accuracy of all that online advice, but so far so good.

I can only assume that nonlawyer types also seek a certain amount of legal advice online.  I thought I would conduct an unscientific survey to check the accuracy of some of that online advice.  Following are some of the less that accurate online legal opinions and conclusions I found.

ONLINE EXPERT: All oral contracts are legally binding. ACTUALLY: The law clearly recognizes that some oral contracts are simply not enforceable.  I think you have to prove that you know that before you can even get into law school.  A contract to transfer an interest in real estate is an example of a type of contract that must be in writing to be enforceable.  That is only one of several.

ONLINE EXPERT: Gifts up to the annual gift tax exemption of $13,000.00 require no payment of gift tax or filing of a gift tax return.  ACTUALLY:  Be very carefull anytime you read anything about an amount.  There are many sites that discuss an annual gift tax exemption of $13,000.00.  Actually, the gift tax exemption for 2013 is $14,000.00.  It was $13,000.00 last year.  It is often hard to tell if information on a particular site is up to date or when the information was posted.  If the online expert is opining about tax rates, exemption amounts, jurisdiction limit amounts, estate tax exmeptions or similar information, it is critical to be sure that your are reading current information.  You could probably find a website which says that segregation is legal and that women are precluded from serving on juries.  Obviously, you would then be knee deep in very dated information.

ONLINE EXPERT: If a husband and wife own property jointly, a creditor of just one spouse cannot come after that jointly owned property.  ACTUALLY:  Maybe.  There is truth to that statement if you are residents of Missouri.  If you reside in some other state or own property outside the state of Missouri, this may not be true at all.  Missouri is unique with respect to that issue.  So, that advice you are reading online, it may be applicable only to a particular state and you may or may not know what state he is referencing.

The moral of the story?  Be careful about where you get that legal advice and whether or not it even applies to your situation.  There is some truth to the old saying, advice is often times worth what you pay for it.


Kill Rate!?!
6/4/2013 9:21:21 AM
It was a long time ago.  Before email, computers, word processing, fax machines, cell phones, Facebook and tweets. LeBron James had not yet been born.  Hard to imagine huh? I hadn't been out of law school long.  I didn't have many cases under my belt.  Someone was trying to size up this young whippersnapper lawyer. He asked me, "What is your kill rate?"

My first thought? Yikes! This guy is really serious about his case. He wants someone killed.  I stuttered around long enough get a bead on what he was really after.  What he really wanted to know was what percentage of time did I win my cases and what percentage of time did I lose my cases?  I think I said something like, "I don't have the latest numbers but I think its pretty good."  I don't think that was the answer he was looking for.

 There was a brief time after that meeting when I thought I should somehow keep my "kill rate" readily available.  You never know when you might need those statistics.  Inerestingly enough, I haven't been asked that question in the 29 years that followed.

The concept of a "kill rate" does however raise an interesting question.  Is everyone's definition of a win or a kill the same?  If not, tabulating a "kill rate" becomes pretty subjective.  Every case and client bring different issues, needs and expectations into a case.  What is a victory or loss for one client is not the same for another.  Anyone can take a case legitimately worth a million dollars and settle it for $50,000.00.  Is that a kill or a win? Hardly.  If I defend a client being sued for $25,000.00 and lose the case but the judgment is only for $2,500.00, have I won the case?  Technically not. In reality? Maybe so.

I still don't have a good, quick answer to that "What is your kill rate?" question. But since it hasn't been asked in 29 years, I won't kill myself worrying about it.


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