More on Dying Intestate

In our last blog post, we discussed the importance of estate planning for millennials and mentioned that dying intestate (i.e. without a Will) is a dangerous proposition. This blog post will provide more information about dying intestate:

            So what actually happens if you die without a Will? We have provided what the “intestate Will” would look like if it were written out (provided in full form below). For your convenience, here are some of its “highlights”:

-          Predetermines legatees and distribution of monetary assets and tangible personal property (no individual preference)

-          Fails to provide for members outside of your immediate family, provided they are living

-          Fails to provide for individual preference or for efficient asset distribution to children (both when they are minors and when they reach the age of legal majority)

-          Does not allow for choice of the appointment of Personal Representative(s)

-          Does not allow for choice of the appointment of a Guardian for minor children

-          Does not account for special support circumstances

-          Potentially liquidates property of personal or familial value

-          Requires court order for funeral and burial/cremation expenses beyond a certain amount

-          Does not allow for personal preference regarding the payment of tax or debt burdens

-          Fails to provide for an unmarried partner

-          Fails to protect assets from an estranged or remarried spouse

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Last Will and Testament

of

John Smith, Intestate

 

I, John Smith, of the State of Maryland, being of sound mind and memory, do hereby publish this as my Last Will and Testament:

FIRST

If none of my children are minors, I give my spouse Fifteen Thousand Dollars ($15,000). Regardless of the age of my children, I give my wife Ten Thousand Dollars ($10,000) for her personal use as her family allowance. If I have unmarried minor children, I give each of them Five Thousand Dollars ($5,000) to the guardian of their property or a parent or grandparent with whom they live as their family allowances.

SECOND

I give one-half (1/2) of the balance of my estate to my surviving spouse and one-half (1/2) to my children.

I appoint my wife as guardian of the property of my minor children, but I acknowledge that if the assets to be distributed to a minor child of mine exceed Ten Thousand Dollars, court involvement will be required to determine how those assets will be managed.

I also ask the Orphan’s Court to determine if a performance bond should be posted to guarantee my surviving spouse or other personal representative exercises proper judgment.

As a final safeguard, my children shall have the right to review the financial records of my surviving spouse

When my children reach the age of eighteen (18) years, they shall have full rights to withdraw their respective shares of my estate.  No one shall have any right to question my children’s actions on how they decide to spend their respective shares.

THIRD

If my spouse predeceases me, I direct the court to choose a guardian for my children.  If any child has attained fourteen (14) years, the court may appoint the guardian chosen by such child.

FOURTH

Should my spouse remarry, their second spouse shall be entitled to take a one-third (1/3) share of everything my wife possesses, or a one-half (1/2) share if there are no surviving children.  The second spouse shall have the sole right to decide who is to get his/her share, even to the exclusion of my own children.

FIFTH

Under existing tax law, there are certain legitimate avenues open to me to lower death taxes.  I prefer that my estate’s assets be used for governmental purposes rather than for the benefit of my wife and children.  I direct, therefore, that no effort be made whatsoever to lower taxes so that the government may benefit substantially from my death.

SIXTH

I ask the Orphan’s Court to appoint either my wife or my children over eighteen (18) years old, as it may decide in its discretion, to handle my estate and to be my personal representative.  As a safeguard, I direct that my personal representative file a performance bond to guarantee that the personal representative do everything as should be done.

SEVENTH

Unless the Orphan’s Court approves otherwise, I direct that no funeral or burial expenses in excess of ($5,000 for a small estate or $10,000 for a large estate) be paid for my funeral or burial from my estate.

EIGHTH

I specifically disinherit any friends and other worthwhile causes because only my family members, as outlined above, will inherit my estate.

 

IN WITNESS WHEREOF, Ihave et my hand to this My Last Will and Testament this ____ day of ___________________, 20__.

 

          _________________________

 

Five Millennial Estate Planning Misconceptions

1.      “I am too young to start considering estate planning.”     

 

This is perhaps the most common estate planning misconception of millennials. Many in their 20s and 30s believe they are “untouchable” by death or incapacitation because they are in the prime of their lives; yet tragedy does not discriminate. All too often we hear of the college student with a promising future who was in a terrible car crash, of the young father suddenly befallen by a heart attack, or of some other person struck by unexpected catastrophe at all too young of an age.

It’s understandable that no one wants to think about and plan for tragedy, especially at a young age. Grappling with your own mortality is difficult, but it is important to consider the consequences if you don’t. If tragedy strikes, those closest to you will be left to make life-altering decisions, ranging from your immediate and future medical care to your family’s wellbeing. Without your estate plan in place, those charged with making these difficult decisions will be left in the dark—without your input or opinion. An estate plan obviates these uncertainties.

A well-planned estate helps protect your financial interests, personal values and well-being, primarily through three documents: a Will, a Power of Attorney, and an Advance Medical Directive. Here is a brief description of the role that each of these documents plays in your estate plan:

Will:  Your Last Will and Testament provides for various decisions on financial and non-financial concerns that arise upon your death. Common issues to provide for include:

 

-          Burial/cremation, funeral arrangements and organ donation

-          Inheritance provisions

o   How much?

o   To whom?

o   From which source?

o   On what conditions?

-          Future arrangements for minors and other dependents

-          Payment of debts and taxes

-          Appointment of the person to carry out your wishes

 

Without a Will, you die intestate, meaning that these decisions will likely be placed in the hands of a court-appointed representative. In our next blog post, we will highlight the many problems that arise when one dies intestate.

Power of Attorney (PoA): Unlike a Will, a PoA is a document that is in effect only when you are still living. Times of tragedy are often rife with financial concerns. A PoA allows for an agent to act on your behalf with regard to financial matters (contracts, debts, insurance policies, bank and brokerage accounts, etc.) during a time in which you are rendered incapacitated and therefore unable to attend to these matters on your own.

Advance Medical Directive (AMD): An AMD is, in effect, a PoA for medical decisions and should be considered an absolute necessity for anyone over the age of 18. Just like a PoA, an AMD is only effective when you are still living and puts an agent in place to make decisions for you if you are incapacitated or otherwise incapable of making your own decisions. Without an AMD, important medical decisions will be made by the attending physician without regard to your personal or religious preferences. Having an AMD in place gives the authority to make these decisions to someone who you can trust will make the right decisions on your behalf, including with regards to the admission and discharge from any health care facilities (including nursing homes), the use of pain medication, the use of artificial nutrition and hydration versus allowing natural death, etc. These decisions are extremely personal and on which most everyone has a preference.

2.      “I don’t have many assets so I have no need for a will.” 

This is a common refrain from millennials when you tell them the importance of having a Will, even at a young age. Perhaps this is just a polite way of them saying, “Leave us the **** alone,” but we believe it is our responsibility to dispel the notion that a Will is only for those that have a lot of asset. First and foremost, a will is about recognizing the relationships that you forged in your lifetime, be it with family, friends or an organization. When you die without a Will, the State pays little heed to these relationships when it administers your estate.

The financial aspect of caring for your surviving spouse, children, or aging parents undoubtedly plays a significant role in what you leave behind. You want the people you care for to be better off financially. But what if there is little you can do to improve their financial standing? Consider also the personal legacy that you leave behind with mementos of your relationships. Maybe it’s something valuable, like the house in which you raised your children; but maybe it’s something with little value, like the tattered glove that you used to play catch with your father. Everyone reading this blog post has some earthly possessions that hold particular sentimental importance not only to them but to others. Having a will prepared ensures not only your financial legacy but also your interpersonal legacy.     

3.      “I am only hurting myself by not planning my estate.” 

            False. In fact, in many cases you are probably hurt the least, and it’s your loved ones who are hurt. Not only are they left to cope with the recent loss or incapacity of their loved one, but they are also left with great uncertainty with making your medical and financial decisions, as well as dealing with many issues (court-appointed representatives, contested property, unnecessary probate, taxes and court costs) that could have easily been prevented had you planned accordingly. When someone dies intestate, their wishes are not made known, which often leads to inter-family disputes. This can be of particular consequence when dealing with the future care of minors and other dependents.  

4.      “I don’t need to pay an attorney for something I can do on my own.” 

With the rapid development of online legal services just a click away, this is quickly becoming one of the most prevalent misconceptions about estate planning. It seems like a no-brainer: Why throw away money paying a lawyer to draft these documents when you could go to sites like LegalZoom or to your local office supplies store and purchase a $50 Mad Libs-style DIY estate plan? These are arguably the most important legal documents a person can have. Are you sure you can rely on these $50 documents in the most dire of circumstances when you pay more each month for auto insurance, life insurance, and health insurance? When something seems too good to be true, it usually is just that.

Yes, these services offer you the ability to draft these documents without paying for a lawyer. While these forms allow for customization, there is no personalization. They do not and cannot understand your true wishes or reasons for planning your estate as you do. Without knowing this, they cannot possibly provide the protection you need from the various contingencies that are bound to arise.

Lawyers cost more because they do more than simply fill-in-the-blanks. They read up on evolving law and consult with fellow lawyers because estate planning is not “one size fits all.” If you believe you are the same as the Texas truck driver or New York investment banker because you all have a wife and two kids, then we suggest using LegalZoom. However, if you believe that there are intricacies or personal wishes that you wish to incorporate into you estate plan, we suggest you hire a lawyer.

5.      “I am not at a point financially where I can afford to pay a lawyer.” 

We at Oehrig & Mailman understand the struggles, financial and otherwise, that come with being a millennial trying to establish a life: a new job, a new marriage, a new house, a newborn. For these reasons, our estate planning packages are specifically tailored to ensure that your estate plan is affordable. We also offer special promotions and payment options because we want to assist families, not impoverish them. If what you have read in the blog makes you think you need to start thinking about estate planning, call us at (410) 952-8268 or email us at info@omjustice.com. We would be glad to discuss any questions you may have in a free consultation!

 

 

 

FAQs on Drunk Driving Stops in Maryland: Super Bowl Edition

Super Bowl XLIX is just around the corner. The Seahawks are trying to repeat as NFL champions, and the Patriots are in search of their first post-Spygate title. It’s not exactly the Ravens-Redskins matchup that would send Marylanders into a frenzy, but that won’t stop anyone in the Old Line State from celebrating with plenty of wings and beer.
  

The lawyers at Oehrig & Mailman, LLC want you to have fun but urge you to be responsible and get home safely. If you’ve had a few “barley sandwiches” or got mixed up in a Tom Brady-shown-on-the-sidelines drinking game, find your Designated Driver; the guy that hovered over the plate of wings all night is probably who you want to drive you home (and not the guy that kept digging in the cooler for another beer). If you do end up driving yourself home and you get pulled over, it is important to understand the process of a drunk driving stop in Maryland, even if you haven’t been drinking. Here are some FAQs to help you better understand the process:

 

 

Is there an increased chance of being pulled over on Super Bowl Sunday?

            Almost certainly. There is usually increased enforcement in the form of extra DUI patrols and DUI checkpoints. There is also added suspicion on any night between the hours of 11 pm - 4 am.

 

For what reasons can a police officer pull me over for suspected drunk driving?

            Any number of reasons. A DUI patrol may notice either a traffic violation (driving through a red light, failing to stop at a stop sign, driving without headlights, speeding, etc.) or erratic driving (weaving, driving too slowly, etc.).

 

Do I have to answer the police officer’s questions?

            No. You are not required to answer any questions that the officer may ask you. If you have been drinking, respectfully respond, “Before answering any questions, I would like to speak with an attorney.” However, if you have not been drinking, it is best if you politely answer the questions.

 

At this point, does the officer have to give me a Miranda warning and advised of my rights?

            No. Until you are arrested, the officer is not required to advise you of your rights. That is why it is so important to know your rights beforehand (hence these FAQs). However, once you are brought back to the station for a breathalyzer test, the officer is required to read and explain the DR-15 Rights Form before they administer the test.

 

What is a Standardized Field Sobriety Test (SFST)?

            A set of three tests. Officers in Maryland use three tests, all of which you have probably seen on TV: the Follow-the-Pen Test, the Walk-and-Turn in a Line Test, and the One-Leg-Stand Test.

 

If asked, should I perform the SFST?

            Probably not. A person may refuse the SFST without any direct consequences although, realistically, you should expect to be arrested. However, the officer has probably already made up his/her mind to arrest you prior to the test and is only using the test to gather more evidence to support any charges against you.  Even if you “pass” the SFST, the officer can still arrest you (although the result could later be used as a potential defense).

 

If asked, should I take a breathalyzer test?

            It depends. If you have ever looked at the back of your Maryland license, you might note that it says you impliedly consent to chemical testing for intoxication. Refusing to take a breathalyzer test will often result in your license being taken away and suspended for 120 days. It also does not mean that you cannot still be convicted for a DWI/DUI. If you are indeed convicted of these charges and you refused the test, the sentence against you can be enhanced. On the flip side, if you fail the test, it can and will be used as evidence against you to support charges and, as you will see below, the penalties you face for a DWI/DUI conviction may be harsher than a license suspension.

 

What should I do if I consent to a breathalyzer test?

            Ask for a lawyer to be present first. In Maryland, you have the right to consult with an attorney before you agree to a breath test, as long as it does not unreasonably delay the administering of the breath test, which must be given within two hours of apprehension. Having a lawyer present will help him to establish potential defenses to the charges brought against you.   

 

Can I still be arrested and charged if I blow under a .08?

            Yes. If you blow a .04 - .07 the officer can still charge you with Driving While Intoxicated (DWI). The reason for the traffic stop (i.e. erratic driving, etc.), your performance on the SFST, and your general demeanor can all be used to support an officer’s suspicion of drunk driving.

 

What are the potential legal consequences for a DWI/DUI?

·         1^st Offense: Incarceration up to 2 months/1 year (DWI/DUI); a fine up to $500/$1000 (DWI/DUI); up to 8/12 points on license (DWI/DUI); minimum license suspension: 6 months

·         2^nd Offense: Incarceration up to 1 year/2 years (DWI/DUI); a fine up to $500/$2000 (DWI/DUI); up to 8/12 points on license (DWI/DUI); license suspension: 1 year

·         3^rd Offense: Incarceration up to 3 years (DWI & DUI); a fine up to $3000 (DWI & DUI); up to 8/12 points on license (DWI/DUI); license suspension: 1 year

·         Penalties are enhanced for refusing to take a breathalyzer test by up to 2 months and $500

 

Will my sentence be this stiff?

Maybe. This is why hiring a good lawyer is important. There are many defenses to drunk driving charges that can mitigate the harshness of a sentence. Maryland does offer some first-time offenders Probation Before Judgment (PBJ). A PBJ is often a favorable result that means you are guilty of drunk driving, but will not be convicted so long as you abide by the terms of the probation.  

 

 

As you can see there are many potential issues, some more complicated than others, when it comes to drunk driving. In many cases, the officer has already convinced himself of your guilt, and there is nothing you can do to change their mind so don’t try. Be as cordial as possible to the officer and try to remember every possible detail. But the most important thing to do is to immediately contact a qualified Maryland attorney who knows what facts to look for to help you get the best outcome possible.

 

 

 

Advance Medical Directives--Why You Should Have One

Medical emergencies and life-threatening illnesses can be incredibly difficult times for you and your family. An "Advance Medical Directive" (or an AMD) is a legal document that can eliminate some of the uncertainty in times such as these. An AMD provides written, legal instructions regarding your preferences for medical care if you are unable to make medical decisions on your own.

By planning ahead for these sometimes unexpected circumstances, you ensure that you get the care that you desire and that your family isn't left to make difficult decisions regarding your care. An extreme example of the consequences of not having an AMD in place is the Terri Schiavo case (http://en.wikipedia.org/wiki/Terri_Schiavo_case), a most unfortunate and divisive case that made national headlines.

There is a common misperception that an AMD is only for the elderly or sickly. Unfortunately, end-of-life situations can occur at any time, so it is important for all adults, young and old, to set out these health care decision preferences in an AMD. It will put you and your family at ease of mind.

At Oehrig & Mailman, LLC, we would be glad to further explain to you the importance of having an AMD prepared as soon as possible. Give us a call at (410) 952-8268 to set up a free consultation.

The Beginning of Oehrig & Mailman, LLC

The last weeks of 2014 have been exciting ones at Oehrig & Mailman, LLC. Since forming the law firm on December 17th, and after a whirlwind of activity since that date, we have settled into office space at 17 W. Pennsylvania Avenue, Suite 510, Towson, MD 21204. In the new year, the real work begins as we delve into our casework in earnest. Undoubtedly, 2015 is going to be a good year and we are thrilled that we will have the great privilege of spending it serving the legal needs of the greater Baltimore area.