Frequently Asked Questions

No. Even though marijuana use is legal, employers are still entitled to have policies restricting drug use and requiring drug testing. If you have a policy to conduct drug tests, you need to make sure the policy is applied consistently to all employees. For example, if you require drug testing upon hire, make sure all employees are tested before they are hired. If you conduct random drug testing, make sure you have measures in place to ensure the testing is in fact random. If you conduct drug testing after an accident or incident at work, your policies should be clear as to what incident will result in a drug test. Your policies should also clearly state the discipline that will be imposed in the event of a positive drug test. Failure to apply the testing and discipline in a consistent manner could raise issues as to potential discrimination.

Yes, under certain circumstances. If the employee continues working after the cut in hours, he or she may qualify for partial unemployment benefits. The Employment Security Department will reduce the amount payable to the employee based on the amount the employee is still earning at work. The more the employee earns at work, the higher the reduction in unemployment benefits.

An eligible employer may participate in a program offered by the Washington Employment Security Department called Shared Work. The Shared Work program is available to provide an alternative to layoffs by allowing eligible employers to reduce the work hours of their full-time employees, while the workers collect partial unemployment benefits to replace a portion of their lost wages.

If the employee’s hours or pay is being cut by 25% or more, then the employee can voluntarily quit for that reason and he or she will still be entitled to unemployment benefits.

Not necessarily. You are only required to look for or accept “suitable work.” Work is not suitable if:

• It is not consistent with your training and experience. However, after a period of time, any job you are qualified to do may become “suitable.”
• The job requires you to join or leave a labor union.
• The location of the work is further away than the typical commuting distance in your area for people in your occupation.
• You are physically unable to perform the work or the work is unreasonably dangerous.
• The hours or working conditions of the job are less favorable than most other jobs in your occupation in your area.
• The wages offered for the job are lower than the typical wages for that occupation in your area.
• The work offends your religious or moral beliefs.

In general, no. However, there is an exception to this general rule if the employee quit for “good cause.” Good cause is limited to the following reasons:

• The employee took another job;
• The employee became sick or disabled, or a member of his or her family became sick, disabled, or died, AND it was necessary for the employee to quit as a result;
• The employee quit so he or she could move with a spouse whose job is outside the employee’s labor market area;
• The employee quit to protect him or herself of immediate family members from domestic violence or stalking;
• The employee’s usual pay or hours of work were decreased by 25% or more;
• The employer changed the job location so the employee’s commute is longer or harder than it was previously;
• The employee reported a safety problem to the employer and the employer did not quickly fix the problem;
• The employee reported an illegal activity to the employer and the employer did not quickly stop the activity;
• The employer changed the employee’s usual work and it now goes against the employee’s religious or moral beliefs;
• The employee entered an approved apprenticeship training;
• The employee started approved training under the Trade Act;
• The employee worked a full-time and part-time job at the same time, quit the part-time job and was then laid off from the full-time job.

If the employment relationship is “at will,” then yes, the employer can fire an employee without cause. For more information on “at will employment,” see (link to article on at will employment”). Employment agreements, Collective Bargaining Agreements, or specific employer policies may provide that the employment relationship can only be terminated “for cause,” or for certain specified reasons. If no such contract or policy exists, then in general, the employee can be terminated without cause.

Employment at will means that, in general, a Washington employer can terminate an employee at any time, with or without cause. However, there are exceptions to this rule. A Washington employer may not terminate an employee based on his or her religion, race, sex, disability, age (if over 40), or certain other protected categories. Also, an employer cannot terminate an employee “at will” if there is an employment agreement, Collective Bargaining Agreement, or other contract that provides otherwise.

It is always a good idea to have a contract reviewed by an attorney before you sign it. Often times employment contracts will have restrictions on your ability to work after your employment terminates, even if the employer is the one who decided to end the employment relationship. Employment contracts can also contain important provisions regarding the reasons you can be terminated, what pay you are entitled to receive upon termination of employment, and what benefits you will receive during or after the employment relationship. It is advisable to have the contract reviewed before you sign it, so you can make sure you understand and agree to all of its terms, along with all of the associated risks and benefits.

If the employment relationship is “at will,” then yes, the employer can fire an employee without cause. For more information on “at will employment,” see (link to article on at will employment”). Employment agreements, Collective Bargaining Agreements, or specific employer policies may provide that the employment relationship can only be terminated “for cause,” or for certain specified reasons. If no such contract or policy exists, then in general, the employee can be terminated without cause.

Employment at will means that, in general, a Washington employer can terminate an employee at any time, with or without cause. However, there are exceptions to this rule. A Washington employer may not terminate an employee based on his or her religion, race, sex, disability, age (if over 40), or certain other protected categories. Also, an employer cannot terminate an employee “at will” if there is an employment agreement, Collective Bargaining Agreement, or other contract that provides otherwise.

It is always a good idea to have a contract reviewed by an attorney before you sign it. Often times employment contracts will have restrictions on your ability to work after your employment terminates, even if the employer is the one who decided to end the employment relationship. Employment contracts can also contain important provisions regarding the reasons you can be terminated, what pay you are entitled to receive upon termination of employment, and what benefits you will receive during or after the employment relationship. It is advisable to have the contract reviewed before you sign it, so you can make sure you understand and agree to all of its terms, along with all of the associated risks and benefits.

In Washington, a corporation should have annual shareholder meetings and annual director meetings. The shareholders will elect the members of the Board of Directors for the following year, and the Directors will elect the Officers for that year. The minutes should reflect those in attendance and the results of the elections. Additional meetings should be held in the event of an extraordinary transaction (such as the sale of the company), in the event of a vacancy on the Board of Directors, or when a major decision requires approval of the Board of Directors.

A husband and wife may operate a business as a sole proprietorship. However, they may choose to operate as a general partnership if they prefer. With a partnership, the formal terms of the partnership are usually contained in a written partnership agreement. That is not typically the case with a sole proprietorship. You should contact an attorney, accountant or financial advisor to determine which form is most suitable for your business.

A non-disclosure agreement is an agreement with a vendor, employee, independent contractor, or any other individual or entity, with the purpose of protecting a company’s confidential information. The agreement should specify the information being protected, and should provide that the employee, vendor, etc., will not disclose the protected information except as required in the usual course of business. A non-disclosure agreement is useful in many situations. One common use of a non-disclosure agreement is with an employee who will have access to compilations of customer data or unique and confidential business strategies and techniques. Non-disclosure agreements are also advisable when one company is seeking to purchase another company, and in the course of the transaction will be provided with financial or other confidential information. The agreement would prevent the company from disclosing that information if the transaction is not completed.

A common mistake made by businesses when filing their quarterly unemployment insurance tax reports is misclassifying their employees as independent contractors. If the Washington State Employment Security Department discovers these mistakes, the business is responsible to pay back taxes for the misclassified workers, in addition to accrued penalties and interest.

Under the federal Family and Medical Leave Act (FMLA), employees who work for covered companies may take up to 12 weeks of leave to care for a newborn or newly adopted or foster child, to recover from the employee’s own serious illness, or to care for a child, spouse, or parent with a serious health condition. A covered company is any public employer or a private employer with 50 or more employees that work within 75 miles of the employee’s worksite. To earn this benefit, the employee must have worked at least 12 months for the employer for a total of at least 1,250 hours. FMLA leave is typically unpaid leave, but an employer can choose to provide paid leave.

As long as you were not fired as a result of misconduct or gross misconduct, you can still receive unemployment compensation if you were fired.

Misconduct
Under Washington law, misconduct includes, but is not limited to, the following conduct:

• Willful or wanton disregard of the rights, title, and interests of the employer or a fellow employee, including:
  • Insubordination showing a deliberate, willful, or purposeful refusal to follow the reasonable directions or instructions of the employer;
  • Repeated inexcusable tardiness following warnings by the employer;
  • Dishonesty related to employment, including but not limited to deliberate falsification of company records, theft, deliberate deception, or lying;
  • Repeated and inexcusable absences, including absences for which the employee was able to give advance notice and failed to do so;
  • Deliberate acts that are illegal, provoke violence or violation of laws, or violate the collective bargaining agreement. However, an employee who engages in lawful union activity may not be disqualified due to misconduct;
  • Violation of a company rule if the rule is reasonable and if the claimant knew or should have known of the existence of the rule; or
  • Violations of law by the claimant while acting within the scope of employment that substantially affect the claimant’s job performance or that substantially harm the employer’s ability to do business.
• Deliberate violations or disregard of standards of behavior which the employer has the right to expect of an employee;
• Carelessness or negligence that causes or would likely cause serious bodily harm to the employer or a fellow employee; or
• Carelessness or negligence of such degree or recurrence to show an intentional or substantial disregard of the employer’s interest.

Gross Misconduct
Gross misconduct means a criminal act in connection with an individual’s work for which the individual has been convicted in a criminal court, or has admitted committing, or conduct connected with the individual’s work that demonstrates a flagrant and wanton disregard of and for the rights, title, or interest of the employer or a fellow employee.

Not Misconduct
The following acts do not constitute misconduct:

• Inefficiency, unsatisfactory conduct, or failure to perform well as the result of inability or incapacity;
• Inadvertence or ordinary negligence in isolated instances; or
• Good faith errors in judgment or discretion.

Service performed by an individual is considered employment unless it is shown that:

• The individual is free from direction and control over the performance of the service; and
• The service is either performed:
-Outside of the usual course of business for which the service is performed, or
-Outside of all the places of business of the enterprise for which the service is performed; or
-The individual has a principal place of business and is responsible for the costs; and
• The individual:
-Is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service contract, or 
-Has a principal place of business that is eligible for a federal income tax business deduction; and
• On the effective date of the contract of service, the individual is responsible for filing a schedule of expenses with the Internal Revenue Service; and
• On the effective date of the contract or within a reasonable period after the effective date of the contract, the individual has an:
-Active account with the Department of Revenue, 
-Active account with any other state agencies, and
-A Unified Business Identifier (UBI) number; and
• On the effective date of contract of service, the individual is maintaining a separate set of books or records that reflect all items of income and expenses of the business that the individual is conducting; and
• If the services are by an individual in the electrical or construction industries, it must also be shown that, on the effective date of the contract, the individual has a valid contractor registration under RCW 18.27 or an electrical contractor license under RCW 19.28 if the work requires a registration or license.

No. The rules on family leave under the Washington Family Care Act simply assure that employees who do have earned sick leave or other paid time off are able to use this leave to care for sick family members. It does not require employers to offer paid time off.

No. However, you should make certain that the worker is in fact an independent contractor. You may want to speak to an attorney to discuss this prior to filing a quarterly tax report with the Washington State Employment Security Department.

An employee may use available paid time off when a spouse, parent, registered domestic partner, parent-in-law, or grandparent has a serious or emergency health condition, which requires an overnight stay in a hospital or other medical-care facility; which results in a period of incapacity, treatment or recovery following inpatient care, or which requires continuing treatment under the care of a health care services provider that includes any period of incapacity to work or attend to regular daily activities.

Yes. An employee may use available paid time off to care for a wife or daughter while she is incapacitated as a result of pregnancy or childbirth. This generally includes some prenatal and postpartum examinations, hospitalization, and during the immediate recovery period after childbirth.

An employee may use available paid leave when his or her child has a “health condition,” including: a medical condition requiring treatment or medication that the child cannot self-administer; a medical or mental-health condition that would endanger the child’s safety or recovery without the presence of a parent or guardian; and a condition warranting treatment or preventive health care such as physical, dental, optical or immunization services, when a parent must be present to authorize the treatment. For purposes of this law, a child includes a biological, adopted or foster child, a stepchild, and a legal ward.

Yes. Under certain conditions, employees with paid leave may use earned paid time off to care for a sick family member under Washington’s Family Care Act. In general, if the employee is eligible to use the paid leave for his or her own illnesses, he or she must also be allowed to use it for a family member who is ill. A family member includes children, parents, spouses, registered domestic partners, parents-in-law, and grandparents. It does not include siblings, aunts and uncles, grandchildren, or grandparents-in-law.

No, as long as the employee is free from any duties for the entire meal period. Employees must be paid for the lunch break if they are required to, or allowed to, remain on duty, they are required to be on-call at the business site or other designated worksite, or they are called back to duty during the meal period.

An employee is entitled to a break of at least 10 minutes for every 4 hours of work. This break must be no later than the end of the third hour of the shift. If the employee works more than 5 hours in a shift, the employee must be allowed a 30 minute meal break. The meal break must start at least 2 hours into the shift but not more than 5 hours after the beginning of the shift.

Yes, an employer may require employees to work overtime.

Most workers who are paid an hourly wage must be paid overtime if they work more than 40 hours in a 7-day work week. Overtime must be at least one and one-half times the worker’s regular hourly rate. There are exceptions to this rule. Employees categorized as “exempt” do not have to be paid overtime for hours worked in excess of 40 hours in a week.

The Washington minimum wage for 2012 is $9.04 per hour. In 2013 the minimum wage will be $9.19 per hour.

In general, an employee or an employer can terminate the employment relationship without notice, and without cause. There are some exceptions to this general rule, including that a covered employer cannot terminate an employee based on the individual’s race, color, religion, disability, age (if over 40), and certain other protected categories. This general rule does not apply if there is an employment contract or Collective Bargaining Agreement that provides otherwise.

There are many factors that go into determining whether a non-compete agreement is enforceable. First, the agreement must be supported by a promise by the employer other than just continued employment (i.e. a promotion, a raise, training) or it must be signed at the time employment commences. Second, the agreement must be reasonable in duration and in geographic scope. Finally, the agreement must be necessary to protect the employer and must be narrowly tailored to accomplish that goal.

If you filed for a profit corporation or a limited liability company, the Initial Annual Report is due within 120 days of your initial filing. Failure to file the Initial Annual Report might result in an administrative dissolution. Non-profit corporations, sole proprietorships, and general partnerships do not have to file an Initial Annual Report.

You should file with the Secretary of State to form your business before filing the Master Business Application with the Department of Revenue. However, if you are starting a general partnership or sole proprietorship, you do not have to file with the Secretary of State and may complete the Master Business Application with the Department of Revenue.

In Washington, a corporation should have annual shareholder meetings and annual director meetings. The shareholders will elect the members of the Board of Directors for the following year, and the Directors will elect the Officers for that year. The minutes should reflect those in attendance and the results of the elections. Additional meetings should be held in the event of an extraordinary transaction (such as the sale of the company), in the event of a vacancy on the Board of Directors, or when a major decision requires approval of the Board of Directors.

A husband and wife may operate a business as a sole proprietorship. However, they may choose to operate as a general partnership if they prefer. With a partnership, the formal terms of the partnership are usually contained in a written partnership agreement. That is not typically the case with a sole proprietorship. You should contact an attorney, accountant or financial advisor to determine which form is most suitable for your business.

A non-disclosure agreement is an agreement with a vendor, employee, independent contractor, or any other individual or entity, with the purpose of protecting a company’s confidential information. The agreement should specify the information being protected, and should provide that the employee, vendor, etc., will not disclose the protected information except as required in the usual course of business. A non-disclosure agreement is useful in many situations. One common use of a non-disclosure agreement is with an employee who will have access to compilations of customer data or unique and confidential business strategies and techniques. Non-disclosure agreements are also advisable when one company is seeking to purchase another company, and in the course of the transaction will be provided with financial or other confidential information. The agreement would prevent the company from disclosing that information if the transaction is not completed.

You must first complete an “Application for Withdrawal or Dissolution of a Corporation” with the Department of Revenue. Once you receive a “Revenue Clearance Certificate”, that should be provided to the Secretary of State along with your Articles of Dissolution. Additional matters will include paying all creditors and employees, distributing any remaining assets, and winding up the business.

All corporations, LLCs, and registered limited partnerships doing business in Washington must have a Registered Agent with a Washington State address. The Registered Agent must provide a physical address where the agent is available for service of legal process. The Registered Agent may be an individual or any other organization qualified to do business in Washington. The Registered Agent receives license renewals and other notices and also accepts legal papers served on the corporation.

The UBI (Unified Business Identifier) is a state issued number and identifies your business for all Washington State agencies. The Federal Employer Identification Number (FEIN) is issued by the Internal Revenue Service and identifies your federal tax account. The FEIN is similar to a Social Security Number for your business and will be used for federal tax filings and to open business bank accounts.

The Unified Business Identifier (UBI) number is a unique number that is assigned to your business when you register with the Washington Secretary of State to form a corporation, limited liability company, limited partnership, or other business entity. If your business is not a type required to be registered with the Secretary of State, your UBI number will be provided when you complete a Master Business Application with the Department of Revenue. The UBI number will be used with other state agencies for filing, taxes, and identification.

Owners, or Members, of an LLC participate equally in the management of their LLC while a Manager might be a person that is specifically hired to manage the LLC. This could be a Member, an outsider, or an outsourced job.

A corporation is an independent legal entity. It has shareholders, therefore personal control is limited. Generally, the owners (shareholders) of a corporation are not personally liable for debts of the corporation (limited liability). The structure of the company includes the shareholders (owners), Board of Directors, and Officers (i.e. President).

A limited liability company (LLC) also offers limited personal liability for the owners, but the structure and administration of an LLC is less complicated. It has only members or managers.

There are other differences related to taxation, liability and governance, which should be discussed with an attorney or CPA.

Maybe, but do not count on it. Washington follows the so-called “American Rule” which provides that each party pay for their own legal fees. A winning party may only be awarded his or her reasonable attorney fees if it is allowed by statute, previously agreed to in writing by the parties as in a contract providing for the award of attorney fees in the event of a dispute, or on a few well settled grounds of equity. Many if not most lawsuits do not fall within either of these categories. Even if you are awarded attorney fees, the award is typically not 100% of your legal fees and may not be collectible from the party being ordered to pay.

Please don’t hesistate to call our offices to speak with an experienced litigator from Blado Kiger Bolan, P.S. We are here to answer your questions.

Yes, if the judge has not yet made any decisions in your case you can challenge the bias or fairness of the judge and request the case be heard by another judge. In Washington this is done by filing an Affidavit of Prejudice with the court. After the judge has made any ruling in your case, even before the actual trial, it is too late to remove a judge for bias or prejudice against you.

Yes, maybe. Under very limited circumstances and within limited time frames a Default Judgment may be set aside or reversed by a court. There has to be some excusable neglect or an irregularity in the proceedings for a court to even consider a request to set aside a Default Judgment and the request to set must usually be made within one year of the judgment. This is a limited remedy and should not be considered as an alternative to timely responding to the lawsuit.

If one is lawfully served with a Summons and Complaint in a civil action and then fails to respond by filing with the court and serving the opposing party with an Answer that person is subject to having a court order entered granting the relief requested in the lawsuit. This is called a Default Judgment and has the same effect as if the case went to trial and the person lost the case. A Summons tells the defendant where, when and how to appear, defend and file an Answer. A Complaint sets out the facts giving rise to the suit and specifies what relief (usually money) the person filing the suit wants. A lawyer needs a thorough understanding of the facts of the matter and may have to review statutes and case law to prepare an Answer so do not wait until the last minute to seek legal counsel.

In general, civil litigation is a lawsuit involving claims for damages, such as a breach of contract, personal injury or title to real property. A suit by a government against an individual where a fine or a jail sentence is being sought against one for the alleged commission of a crime is a criminal case.

To a lawyer, “having a case” means that one has suffered a wrong for which the law provides a remedy , the party at fault is known and can be found to sue, and the time for obtaining a remedy has not expired. Only a lawyer practicing in the area of law in which you think you “have a case” can properly determine whether or not you have a right to sue someone and what the likelihood of the outcome of a suit might be.

Once you have a reason to sue someone the lawsuit must be filed before the statute of limitations for the claim runs out. There are many statutes and other procedural rules limiting the time for one to file a lawsuit. For example the time limitation to sue on a written contract is 6 years while the time limitation to sue on an unwritten contract is 3 years.

Yes, more than one person or company may be joined in the same lawsuit if the claim or claims arise out of a common set of facts and the relief requested is the same or similar. In some cases other parties must be brought into a case to obtain a proper result.

A summary judgment procedure is a pretrial motion to the court to obtain a ruling on a disputed issue to avoid a trial. The court must find that there are no genuine issues of material facts and that as a matter of law the outcome of the dispute will have only one outcome. A “material fact” is one upon which the outcome of the case depends. All cases have immaterial facts and there does not have be agreement on those facts. “A matter of law” means the legal issue has been decided in other cases and is well settled. Few cases are resolved in this manner because there are usually genuine disputes about material facts in the case.

A judgment is the final written determination of the outcome of a civil lawsuit. In Washington, a judgment of a trial court may be appealed within 30 days to the Court of Appeals. A judgment involving an award of money becomes a lien on all property owned by the judgment debtor in the county where the suit took place and may be enforced by garnishment of wages or bank accounts, seizure of personal property, or foreclosure on real estate.

In Washington, when a case is tried varies with the court and county in which the lawsuit is pending. In general, most cases will be assigned a trial date between eight and twelve months from the date the case is filed. However, for a variety of reasons such as the availability of a judge, a backup of cases that need to be tried, and the fact that criminal cases take priority over civil cases, it is not unusual for a case to be rescheduled to a date beyond the original trial date.

Arbitration and mediation are alternatives to a trial before a judge or jury. In arbitration, a neutral third person decides the controversy between the parties. In mediation, a mediator assists the parties in negotiating a settlement of their dispute but has no authority to decide the dispute.

For civil litigation purposes, a District Court may only hear claims involving matters up to $75,000.00 in controversy. A Superior Court may handle a claim in any amount over $300.00. There are different judges, rules of procedure, and the number of persons on a jury. There are some lawsuits that can only be filed in Superior Court such as those involving title to real estate probate and family law.

In Washington Small Claims Court is a division of the District Courts that handle claims filed in which the amount in controversy does not exceed $5,000.00. Neither party is allowed to be represented by an attorney in a Small Claims Court.

Yes, but unless the case is one in Small Claims Court it is not advisable to represent yourself without at least first consulting a trial attorney.

Read the Summons for directions on what to do. In general, a Summons requires the person served to answer the allegations in the Complaint in writing and file it with the Clerk of Court in which the lawsuit is pending and serve a copy on the opposing party within 20 days of service.

No. If you avoid service, the court may authorize service by a different method such as mail or publication in a newspaper. In that case, the lawsuit may go forward without you and you may lose the case without ever participating in it. It is better to accept the papers from the process server and consult with an attorney about how best to proceed.

A lawsuit is started by serving a Summons and Complaint on a person or an agent for a legal entity.

If the landlord has not lived up to his side of the agreement in a material way – meaning the breach must be significant – that may be a basis to terminate the lease and get back a deposit. However, these situations can be very complicated. Especially in the context of residential leases, the law creates certain duties between landlords and tenants and in some cases certain steps that must be followed before terminating a lease. Those other remedies need to be tried prior to breaking a lease. Also, even if a landlord breaches a lease and you are able to terminate it that does not necessarily mean you get your deposit back. Depending on what the deposit was for, the landlord may still be entitled to retain all or a portion of the deposit.

No. In very basic terms, a contract need only identify the parties and the parties’ respective obligations. With a few exceptions, contracts in Washington do not even need to be in writing. Oral contracts are enforceable in Washington.

Gyms and health clubs are regulated in Washington in order to protect members from unfair or deceptive acts. Every gym or health club is required to maintain a written list of all membership plans available through the club, including each plan’s price. The club is not allowed to offer membership plans that are not on the list. Clubs also cannot offer special plans or discounts unless the offer is in writing and available to all prospective members. All membership agreements must be in writing.

The club must inform the prospective member in writing of his or her cancellation rights. By law a member can cancel a membership contract for the following reasons:

• For any reason within 30 days if the contract is for 1 year or longer.
• If the member dies or becomes totally disabled.
• If the member moves his or her permanent residence more than 25 miles from the club or affiliated club and the contract is for more than 1 year.
• Up to 5 days after the club opens if the membership was purchased prior to the club commencing business.

This list is not exhaustive and there may be other reasons to cancel a membership contract. Upon cancellation, the club must provide a refund of any prepaid (unearned) membership fees within 30 days.

If the terms are clear and are not vague, courts will enforce the contract as written, regardless of the parties’ intent. If there is a dispute as to the interpretation of a contract and the terms are vague, courts seek to enforce the intent of the parties to the contract. The intent will be what a reasonable person would believe that the parties intended. In interpreting contracts, words are interpreted according to their ordinary meaning. The way parties have used terms in their prior relationships can also be used to determine what the parties meant by the words they used in a contract.

Not in general, although there are some exceptions to that rule. Some examples include deeds and leases lasting more than one year.

Not necessarily. A letter signed by only one party setting forth the terms of the oral agreement may be enforceable. However, the writing, whether it be a letter or memorandum, must be signed by the person against whom you are seeking to enforce the contract. The writing must contain all of the material terms of the contract so that a Court can determine what has been agreed upon.

No. Oral contracts can be valid and enforceable. The law does require that certain contracts must be in writing in order to be enforceable. Some examples of contracts that must be in writing include those lasting more than one year, involving the sale of real estate, guaranteeing the debt of another, for the sale of goods costing more than $500, and prenuptial agreements.

Rescission of a contract means to put the parties back in the same circumstances they were in before entering into the contract. This often requires the consent of both parties.

A person who has the ability and the opportunity to read a document before signing it is contractually bound by the terms of the document even if the person signed it without reading it. Even if a person is unable to read or understand the terms of the contract, that person is still bound by the terms of the contract since he should have tried to obtain an explanation. An exception to this rule is if the other party knows, or has reason to know, that the signer cannot read the contract or has limited ability to understand its terms.

A contract may not be enforceable if one or both parties were mistaken as to an essential and material fact relating to the contract.

An option contract is a contract that gives the right to one party to enter into a second contract with the other party at a later date. The most common option contract deals with the sale of real estate, when the prospective buyer will be granted an option to purchase the property within a specified period of time. If the option period expires, then neither party has any obligation to the other, but the money paid for the option is not returned.

Parties to an agreement must have contractual capacity before the agreement will be binding on both parties. Contractual capacity is the ability to understand that a contract is being made and to understand its general nature. The fact that a person fails to completely understand the contract or fails to review its terms does not mean that the person lacks contractual capacity.

A non-breaching party has a duty to mitigate damages, which means to take reasonable steps to minimize damages. The failure to mitigate damages may cause the non-breaching party to only be allowed to recover damages that would have resulted if mitigated.

A breach of contract is a failure to perform the contract in the manner called for by the contract. A party is entitled to contractual remedies if the other party breaches a contract.

A contract is discharged by performance of its terms. If a person offers to perform the contract pursuant to its terms and the other party refuses to allow performance, the contract may be deemed discharged.

A counteroffer is a new set of terms and conditions given in response to the original offer. A counteroffer acts as a rejection of the original offer and causes it to be null and void.

In addition to revocation of the offer, offers may be terminated by a counteroffer, rejection of the offer, lapse of time set forth in the offer, the death or disability of either party, or if performance of the contract becomes illegal after the offer is made.

Yes, an offer can be withdrawn or revoked at any time before acceptance by communicating the withdrawal or revocation to the offeree.

No. But, an offer must be communicated in some manner to be valid.

No, it would be considered an invitation to negotiate or make an offer and cannot be accepted in a contractually-binding manner.

The person making the offer must intend to create a legal obligation, or appear to intend to create a legal obligation. If the circumstances of the offer would cause a reasonable person to believe there was no intent to enter into a binding agreement (i.e. a joke), it will not be considered a valid offer.

The basic elements of a contract are (i) offer; (ii) acceptance; and (iii) consideration (payment or a promise).

A contract is an agreement between two or more persons (individuals, corporations, partnerships, limited liability companies, or government agencies) to do, or refrain from doing, a particular thing in exchange for something of value.

Any person who is “competent” to testify, whether or not they are a minor, can be required to testify in court. Competence generally means that the person understands the difference between truth and falsehood and understands the duty to tell the truth. Competency also requires that a person have personal knowledge of the topics about which they are called to testify.

Even though children may be competent and qualified to testify in court, many courts look unfavorably on children testifying. This is especially true in family law cases. Calling a child to testify in a family law case often involves asking the child to testify against a parent, which is not in the best interest of a child.

The term “severe economic hardship” can be relevant in child support cases in a few different circumstances. If a parent or child is experiencing a severe economic hardship, that can be a basis for the court to modify an order of child support. Economic hardship to the parent receiving child support may be a factor in determining how much the other parent is required to pay. Also, economic hardship may be a basis for the court to increase child support in steps, as opposed to all at once.

There is no exact definition of economic hardship. It is a condition that depends on the specific circumstances of each case. However, if an economic hardship is self-created, it likely will not be a basis to modify child support or use a graduated increase. Self-created hardships may include voluntarily quitting a job or reducing work hours to part time. On the other hand, involuntary financial situations, such as a medical emergency or layoff, may be a basis for modification of child support.

Domestic violence is defined as (a) physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, between family or household members; (b) sexual assault of one family or household member by another; or (c) stalking as of one family or household member by another family or household member.

“Family or household members” includes, but is not limited to, spouses, domestic partners, former spouses, former domestic partners, persons who have a child in common, adults related by blood or marriage, adults who are presently residing together or who have resided together in the past, and people who have a biological or legal parent-child relationship, including stepparents and stepchildren and grandparents and grandchildren.

If you are the victim of domestic violence, you can seek a domestic violence protection order. The order may restrain the respondent from having any contact with you; from coming to your home or workplace; from coming within a certain distance of you, your home, or workplace; and/or from harassing, stalking, or keeping you under surveillance. In Pierce County, you can apply for a protection order in Room 108 of the Pierce County Superior Court, at the Crystal Judson Family Justice Center, or at a domestic violence kiosk. More information can be found here.

There are two issues you may need to address. The first is the parenting plan and the second is the order of child support. A court may modify an existing parenting plan if the child has been integrated into your home with the mother’s consent in substantial deviation from the current parenting plan. If your son has been with you for a year, then that is likely sufficient to establish integration into your home in substantial deviation from the parenting plan.

If there is an existing order of child support requiring you to pay support to the child’s mother, that order remains in effect until you get a new one entered. If the Division of Child Support is collecting or enforcing the current child support order, they will continue to do so until told otherwise by a court order. If you request a modification of the parenting plan, you can also request that the court modify child support to reflect the new parenting plan.

Yes, by using a Qualified Domestic Relations Order (QDRO). A QDRO is a court order that meets specific requirements of the IRS. An approved QDRO allows a retirement account to be divided pursuant to a divorce or legal separation without penalties and without either party having to claim the money as income until it is actually withdrawn. If the receiving party decides to cash out their portion rather than roll it into a retirement account, such as an IRA, then the receiving party will have to pay income tax and may have to pay a penalty on the withdrawal, unless another exception applies.

The Washington legislature has recently addressed these issues to protect military parents. First, the court does not automatically modify a parenting plan simply because military duty impacts a parent’s time with their children. The parent requesting a modification of the parenting plan would still have to show a substantial change in circumstances, and the military duty by itself is not sufficient to do so.

If a parent receives military temporary duty, deployment, activation, or mobilization orders that involve moving a substantial distance away from the military parent’s residence, or if it will have a material effect on the military parent’s ability to exercise residential time or visitation rights, the military parent may request that the court delegate their residential time or visitation rights to a child’s family member, including a stepparent or another person with a close and substantial relationship to the child for the duration of the military parent’s absence. The court will do so if delegating residential time or visitation rights is in the child’s best interest.

You may be required to attempt dispute resolution prior to bringing a motion with the court, depending on the terms of your current parenting plan.

You can file an action for contempt. In order to establish contempt, you must show that the noncomplying parent had the ability to comply, intentionally failed to comply, and that the noncompliance was in bad faith. If that is established, the court will order makeup time with the children, reimbursement of your costs and reasonable attorney’s fees, and a civil penalty of at least $100, and may order imprisonment.

If the parenting plan you want to modify was entered in Washington, you can file an action to modify that plan in Washington, as long as one parent continues to reside in the state and the children still have some contact with the state. If the children have lived in another state for more than six months, then your ex-spouse could ask the court in that state to exercise jurisdiction and have Washington relinquish jurisdiction. In order to accomplish that, the Washington court and the court from the other state will conduct a joint hearing to determine which state would be the best forum.

There are several potential ramifications if you get behind in child support. First, the other parent can bring a motion for contempt. If the court finds that you have the ability to pay but have not done so, you may have a judgment entered against you for the past due amount, plus the other parent’s attorney’s fees and costs. In egregious cases, the court may even order imprisonment as a sanction. You can also have your driver’s license suspended, have the debt reported to the credit bureaus, have your tax refund intercepted, or have a passport denied. If you are unable to pay the full child support amount, you should contact an attorney to discuss modification of your child support order as soon as possible.

You may be able to modify your child support obligation. Child support can be modified for a variety of reasons. First, if the current order of child support was entered more than a year ago, you may be able to get the amount modified if there is a severe economic hardship. Second, you may be able to modify child support if the current order was entered more than two years ago and your income has changed or the other parent’s income has changed. Also, if your expenses for the child have increased, such as the amount you pay for daycare or medical insurance, that may impact the amount of child support you should pay. Child support modifications can often be completed with just one hearing.

This depends on whether you are the primary residential parent under the parenting plan.

Primary Residential Parent

If you are the primary residential parent, Washington law requires you to provide the other parent with notice of the intended move at least 60 days in advance, when possible. In fact, this requirement applies even if you are just moving out of the children’s current school district. If the existing parenting plan will no longer be workable after the move, then you can propose a new parenting plan to take effect after the move.

After receiving notice of the intended move, the non-relocating parent can object to the move or request a new parenting plan based on the proposed new residence of the children. If the non-relocating parent objects to the move, then the court will schedule a trial date and ultimately decide whether the children are allowed to relocate. The law provides a presumption that the primary residential parent will be allowed to relocate. In determining whether the non-relocating parent has overcome that presumption, the court will consider many factors, including the impact the relocation will have on the existing parenting plan, the logistics of maintaining contact with the non-relocating parent, etc.

If the court grants the relocation, then it will decide on a new parenting plan to accommodate the distance between the parents.

If the court denies the relocation, it cannot prevent you from moving. The court can only order that the children are not allowed to move. Although you cannot be asked this during the trial, if the court does not allow the children to relocate, you will then be given the option of relocating without the children or staying with the children.

If the non-relocating parent does not object to the move, the move will be allowed. If that parent did not propose a parenting plan, then the court will enter the parenting plan you proposed when you first gave the notice of relocation. If the non-relocating parent did propose a parenting plan, then the court will hold a trial to determine the new parenting plan, but the issue of relocation will not be disputed.

Non-Primary Residential Parent

If you are not the primary residential parent under the parenting plan, you are free to relocate without filing a notice of intended relocation. However, if the existing parenting plan will no longer be feasible, you will want to consider filing a petition to modify the parenting plan.

If you are being abused by a spouse, family member, or other member of your household, the first step should be to remove yourself from the environment (if you fear for your safety). There are many resources available, including the YWCA and domestic violence victim shelters.

You may also obtain protection through the court by filing a Petition for Domestic Violence Protection Order or by seeking a protection order in a divorce case. If the court finds you are a victim of domestic violence, then the court can enter a wide variety of protections. This can include restraining the individual from having any contact with you; from coming to your home, work, or school; from coming within a certain distance of your home, work or school; and from harassing or stalking you. The court can also order the individual to leave the shared residence.

Emergency orders can be obtained immediately and will remain in place for approximately two weeks. The responding party must be served with the paperwork and have an opportunity to respond at a hearing. The judge or commissioner will then decide whether to issue the protection order on a longer-term basis.

Mediation is usually a voluntary process, although sometimes the court will order the parties to participate in mediation. During the mediation process, the mediator acts as a neutral party to help the parties reach a resolution. The mediator does not have authority to make a decision in the case.

If you are unable to reach an agreement during the mediation process, the parties are free to continue negotiations outside of the mediation process (either through their attorneys or directly with one another). If no agreement can be reached, then the matter would be presented to a judge at trial and the judge would make a decision based on the testimony and evidence presented.

There are many benefits to a collaborative divorce versus traditional litigation. First, all matters are kept confidential — no declarations are filed with the court (and available to the public) where the parties are slinging mud at the other. Second, the focus on respect and open communication helps the parties maintain an amicable relationship, even after the dissolution of their marriage. This is particularly important when the parties will be continuing to co-parent their children. The process also allows the parties and their attorneys to explore creative solutions that the court may not be able to order if the matter was in traditional litigation.

Collaborative divorce is a way of resolving disputes respectfully and with mutual goals in mind. The parties to a collaborative divorce agree, with each other and with their collaborative attorneys, that they will resolve all matters in their divorce without having contested court hearings. The parties, attorneys, and other collaborative team members (if necessary) will meet to discuss and resolve all matters of the parties’ dissolution of marriage, including parenting issues, child support, asset and debt division, and spousal support, if applicable.

Prior to relocating, the primary residential parent must provide the other parent with notice of the intended move. The other parent can then object to the move. If the other parent fails to object, the move will be allowed. If the other parent does object, then the court will schedule a trial date and ultimately decide on whether the children are allowed to relocate with the primary residential parent. There are many factors that the court will consider in deciding whether the relocation will be allowed, including the impact the relocation will have on the existing parenting plan, the logistics of maintaining contact with the non-relocating parent, etc.

Child support can be modified every two years based on a change of the parties’ incomes. Child support can also be modified when a child changes age categories (turns 12 years old), even if the last order was entered less than two years ago. There are other circumstances under which child support can be modified, and the timeframe for those modifications varies.

A community property agreement is a written agreement signed by both spouses with the intention of avoiding probate upon the death of the first spouse, or at least simplifying the probate process.

The one essential element of a community property agreement is that it passes all community property of the married couple to the survivor when the first spouse dies. This applies to all community property owned at the time of the agreement, in addition to community property acquired after the agreement is signed. The agreement itself is sufficient to transfer title to real and personal property, and therefore no probate is required with regard to community property. If the deceased spouse had separate property, then probate may be required to transfer those assets.

Although not required, the community property agreement may also contain a provision stating that all property owned by either spouse, including separate property, is immediately converted to community property. This provision also applies to all property owned at the time of the agreement and all property acquired after the agreement is signed. If the community property agreement contains this provision, then all assets of the deceased spouse pass to the survivor and probate should not be necessary.

If you want all community property to pass to your surviving spouse upon your death, and your spouse wants the same, then a community property agreement may be advisable. You should speak to an attorney to determine if a community property agreement is appropriate for your situation.

In Washington, children do not get to choose where they live. In general, it is the policy in this state that children should not be put in the position of having to make this decision. This can lead to manipulation of the children by the parents. Further, it is believed that children do not necessarily understand all the implications of deciding where to live. It is up to the parents to come to an agreement on the residential arrangements of their children, and if they are unable to do so, the court will make a decision for them.

A guardian ad litem, or GAL for short, is an independent, neutral party appointed by the court to look into issues regarding parents or children. The GAL may investigate issues of drug or alcohol abuse, mental illness, neglect, or simply what type of residential plan is in the best interest of the children. After conducting an investigation, the GAL will make a report to the court recommending a schedule that is in the children’s best interest. The GAL’s recommendation is not binding on the court but is a factor that the court will consider in making a decision.

There are three ways a divorce can be finalized: 1) by default; 2) by agreement; or 3) by a judge’s decision made after trial.

A divorce can be finalized by default when the respondent was properly served and they fail to respond after the given amount of time. However, there are certain protections that apply to service members or their dependents which prevent a default order from being entered without an attorney being appointed. If the attorney is appointed and determines the service member or dependent is able to participate in the litigation, then a default may be entered if the service member or dependent still fails to defend the case.

Most often, divorces are finalized by agreement. This means the parties have reached an agreement on all issues in the case, which may include a parenting plan, child support, spousal support (often referred to as alimony), division of assets and debts, and payment of attorney’s fees. This final agreement may be reached at any time, from the time the parties first decide to file for divorce until the time a judge makes a decision after trial.

The final way a divorce can be finalized is after a trial on all issues or any issues that did not previously settle. A trial only takes place if the parties have been unable to reach an agreement. After hearing testimony from the parties and their witnesses and considering the exhibits submitted, the judge will make a decision on all issues remaining in the case.

Neither party can force the other party to reach an agreement and settle the case. Therefore, if your spouse refuses to sign the final papers for your divorce, then it is likely that the case will have to proceed to trial for a judge to make a decision. If you believe that you and your spouse reached an agreement but now they are trying to back out, then it is possible that you can force your spouse to follow through with the agreement if it is in writing, signed by the parties, and meets other conditions.

Community property is generally any asset or debt that was acquired during the marriage. There are certain exceptions, including gifts to one spouse only, or inheritance.

Retirement benefits are similar to any other asset. If the benefit was earned during the marriage or even a part of it, then that portion is considered community property. The court may divide a spouse’s retirement after taking into consideration all other assets, both community and separate, and making an equitable division.

Yes, unless the decree specifically states that the obligation to pay spousal support (or alimony) is non-modifiable. This obligation will only be changed by the court after entry of the decree in exceptional circumstances. This may include a drastic and unexpected change in income of either party or that one party failed to disclose assets in the divorce process.

There is currently no waiting period for legal separation. However, many court commissioners and judges are beginning to question whether a 90-day waiting period should apply.

A legal separation is similar to a divorce, in that the court has authority to enter a parenting plan, divide assets and debts, order child support or spousal support, and award attorney’s fees. However, with legal separation, the marriage is not legally terminated. Therefore, neither party can remarry. Some people choose the option of legal separation so their spouse can remain a dependent for medical insurance purposes.

Yes. A divorcing couple must wait 90 days from the time the case is filed and served on the other party before entering final orders.

The most important step to take after you have been injured is to seek necessary medical treatment. Ultimately, all of the medical expenses caused by the at-fault party will be paid by their insurance company. However, this payment typically comes in the form of a settlement check or after a favorable verdict at the conclusion of your case.

Prior to the conclusion of your case, there may be several sources of funds to pay your medical bills.

Upon entering into a contract for the sale, construction, or substantial remodel of a residence, the contractor or construction professional must provide the owner a notice in the following form:

CHAPTER 64.50 RCW CONTAINS IMPORTANT REQUIREMENTS YOU MUST FOLLOW BEFORE YOU MAY FILE A LAWSUIT FOR DEFECTIVE CONSTRUTION AGAINST THE SELLER OR BUILDER OF YOUR HOME. FORTY-FIVE DAYS BEFORE YOU FILE YOUR LAWSUIT, YOU MUST DELIVER TO THE SELLER OR BUILDER A WRITTEN NOTICE OF ANY CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE AND PROVIDE YOUR SELLER OR BUILDER THE OPPORTUNITY TO MAKE AN OFFER TO REPAIR OR PAY FOR THE DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT ANY OFFER MADE BY THE BUILDER OR SELLER. THERE ARE STRICT DEADLINES AND PROCEDURES UNDER STATE LAW, AND FAILURE TO FOLLOW THEM MAY AFFECT YOUR ABILITY TO FILE A LAWSUIT.

If this notice is provided upon entering into the contract, notice of a construction defect to the contractor or construction professional by the owner is a pre-requisite to a lawsuit. If the notice is not provided by the contractor or construction professional, no notice need be given to the contractor or construction professional prior to filing suit.

Please call our offices to speak with an experienced real estate attorney. At Blado Kiger Bolan, P.S. our goal is to help you with your real estate matters.

No. However, before bringing a lawsuit against a contractor or construction professional for construction defects, Washington law requires the customer/owner to provide written notice of any alleged construction defects at least forty-five (45) days prior to commencing suit.

Within twenty-one (21) days after receiving such a notice the contractor or construction professional can offer to inspect the property, repair the work, compromise the claim (monetarily), or dispute the claim. But there is nothing requiring the customer/owner to accept the contractor or construction professional’s offer to repair or compromise any claim. These notice requirements only apply to new construction or substantial remodels (defined as a remodel costing more than one-half (1/2) of the tax assessed value of the real property).

Washington law imposes an implied warranty of habitability on new home builders. The warranty generally exists between the home builder-vendor and the original purchaser of a new home. To violate the warranty, the defects must be so substantial as to make the home uninhabitable.

Yes. For example, for any construction project costing more than $5,000, the prime contractor is required to post at the project for the duration of the project a notice containing:

1. the legal description or tax parcel number, and street address of the construction site;
2. the property owner’s name, address, and telephone number;
3. the prime contractor’s business name, address, phone number, Washington state contractor’s registration number; and
4. either (a) the name, address, and phone number of the lender administering the construction financing, if any, or (b) the name and address of the firm that issued a payment bond, if any.

Further, if the contractor is required to provide a Notice to Customer, the contractor is also supposed to provide customers with informational material published by the state Department of Labor and Industries relating to lien laws. The informational materials can be found at: http://www.lni.wa.gov/I PUB/625-017-000.pdf.

If the Claim of Lien was frivolous and made without reasonable cause (as determined by the court), or was excessive, a summary procedure allows the property owner to have the lien removed or reduced. Under such circumstances the lien claimant will be liable for the owner’s damages, attorney fees, and costs.

There is an implied right to amend a lien if doing so can be accomplished within ninety (90) days of the last day the lien claimant provided labor, professional services, material, or equipment, or the last day employee benefit contributions were due.

Case law also suggests that the mistake in the original lien had to have been made in good faith. Amendments to correct deliberate, fraudulent, or grossly negligent errors may not be permitted.

A claim of lien is good for eight (8) months from the date of recording/filing with the county Auditor. To preserve its lien rights, a lien claimant must commence an action to foreclose on the lien prior to the expiration of the eight (8) month period. Any complaint to foreclose the lien must be served within ninety (90) days of filing the complaint.

Further, the court action must be prosecuted to judgment within two (2) years of filing the complaint or the action will be dismissed for want of prosecution. The statute provides that these time limitations will be tolled during any period of time the property owner is in bankruptcy.

The piece of land that was improved is subject to the lien. But the lien only extends to the interest in the land held by the person who authorized the work. So if a tenant orders work, in many cases only the tenant’s leasehold interest can be liened.

Under the statute, a common law agent can bind the owner. Consequently, in the example of the tenant, under certain circumstances it has been held that a tenant can expose the landlord’s interest in the property to a lien if the tenant was acting as a common law agent of the landlord in ordering the work or improvements. If the property is not subject to a lien, the court can order the improvement removed from the property.

A claim of lien can only be filed within ninety (90) days of the last day the lien claimant provided labor, professional services, material, or equipment, or the last day employee benefit contributions were due. Liens filed after that time are invalid.

Within fourteen (14) days of filing the lien, the lien must also be personally served on the owner or reputed owner, or mailed to the owner or reputed owner by certified or registered mail. Failure to deliver or mail the claim of lien within fourteen (14) days of filing bars the claimant from recovering attorney fees, and costs.

A lien is filed in the Auditor’s office of the county where the real property is located. The lien must contain:

1. the lien claimant’s name, address, and phone number;
2. the first and last date on which labor, professional services, materials, or equipment were furnished or employee benefits were due;
3. the name of the person indebted to the claimant;
4. the street address, legal description, or other description reasonably describing the real property being liened;
5. the name of the owner or reputed owner of the property, if known;
6. the principal amount for which the lien is claimed;
7. a statement from the claimant, under penalty of perjury, that the claim is true and correct; and
8. the name of the assignee if the lien has been assigned.

Notice to Owner. A Notice to Owner should either be (1) mailed by certified or registered mail to the owner or reputed owner, or (2) delivered or personally served upon the owner or reputed owner, with the lien claimant obtaining evidence of delivery (such as a receipt, affidavit of service, or acknowledgement signed by the owner or reputed owner).

Notice to Customer. The contractor must keep a copy of the Notice to Customer signed by the customer and retain it for at least three years. The Department of Labor and Industries can require a contractor to produce a copy of the Notice to Customer signed by the customer.

Prior to starting work on a project, a contractor offering to perform a contracting project is required to provide the customer (person hiring him/her/it) a Notice to Customer in two circumstances:

1. Residential. When the project is for the repair, alteration, or construction of four (4) or fewer residential units or accessory structures and the bid or contract price exceeds $1,000.
2. Commercial. When the project is for the repair, alteration or construction of a commercial project and the bid or contract price is between $1,000 and $60,000. Commercial projects less than $1,000 or more than $60,000 do not require the notice.

The Notice to Customer need not be given when the contractor is working for another contractor. But failure to provide the Notice to Customer, when required, is an infraction.

Sample Notice to Customer: http://www.lni.wa.gov/IPUB/625-115-000.pdf

The Notice to Owner can be given at any time, but it only authorizes the lien claimant to claim a lien for services, materials, or equipment supplied in a given period of time.

With new construction on a single-family residence, only services, materials, and equipment supplied after providing the notice, and for the ten (10) days before the notice, can serve as the basis for a lien. In all other cases, the lien can be claimed for services, materials, and equipment supplied after the notice and for the sixty (60) day period before providing the notice.

Anyone furnishing professional services, materials, or equipment for the improvement of real property must provide the property owner (and in some circumstances the prime contractor) a Notice to Owner unless:

1. the lien claimant contracted directly with the owner or owner’s common law agent;
2. the lien claimant is a laborer whose claim is based solely upon performing labor; or
3. the lien claimant is a subcontractor contracting directly with the prime contractor (except in the case of improvements to an existing owner-occupied single family residence or appurtenant garage, in which case a notice to the owner-occupier must be provided).

Anyone furnishing labor, professional services, materials, or equipment for the improvement of real property may file a lien against the real property such labor, services, material, or equipment was supplied to (excluding public works projects in which case a retainage claim may arise).

However, such labor, services, material or equipment must have been supplied at the request of the owner, owner’s agent, or owner’s construction agent. Further, the person claiming the lien must be registered as a contractor if that is required under Washington law, and must have provided a Notice to Owner or Notice to Customer if that was required by law. Otherwise a lien cannot be filed.

Generally, yes. Clearly such a project meets the “business purpose” portion of the definition of contractor. Further, the property owner exceptions to registration mentioned in the previous question specifically do not include individuals or entities performing contractor type work with the intention of leasing or selling improved property that he, she, or it has owned for less than twelve months.

Yes. Because the definition of contractor is so broad in Washington, there are quite a few statutory exceptions to the registration requirement. The exceptions include:

1. representatives of federal, state or local government entities;
2. officers of a court;
3. public utilities;
4. the sale of finished products that do not become fixtures (as that term is defined under common law);
5. owners working on personal property (such as a mobile home);
6. contractors working within the boundaries of an area under the jurisdiction of the federal government;
7. a person or entity supplying materials, supplies, or equipment to a project who did not fabricate them into the project themselves;
8. projects of a minor, casual, or inconsequential nature so long as the total price of labor, materials, and all other items does not exceed $500, and so long as such person does not advertise or indicate to the public he, she, or it is a contractor;
9. construction projects incidental to irrigation and drainage, farming, or fire prevention;
10. an owner of land who hires a general contractor, unless the owner is hiring the contractor for the purpose of leasing or selling the property (see the following question);
11. a person working on his or her own property or personal residence, unless that person is intending to sell, demolish, or lease the property (see the following question);
12. an owner maintaining or repairing their own property who uses his or her own employees for such purpose;
13. a licensed architect, engineer, electrician, or plumber who is otherwise licensed or certified under the laws of the state of Washington and is acting solely in their professional capacity;
14. an employee of a registered contractor;
15. contractors working on highway projects that have been prequalified with the state Department of Transportation;
16. mobile/manufactured home dealers or manufacturers who subcontract the installation, set-up or repair of mobile/manufactured homes;
17. individuals or entities holding a valid electrical contractor’s license that employ a certified electrician or journeyman to perform plumbing work incidental to replacement of household appliances. Many judicial decisions further refine/explain these exceptions.

It is a gross misdemeanor to offer to work, submit a bid, advertise, or do work as a contractor in the State of Washington without being registered. A conviction is punishable by up to one year in jail and a $5,000 fine.

Failure to register also subjects the contractor to a possible Consumer Protection Act claim, which can include treble damages (up to a maximum of $10,000) and an award of attorney fees and costs.

Further, an unregistered contractor is not permitted to bring or maintain suit for compensation, breach of contract, or any other claim arising from the activity for which the contractor should have been registered.

A contractor (general or specialty) must be registered with the State of Washington Department of Labor and Industries to lawfully work in the state. To become registered, a contractor must submit an application to the Department of Labor and Industries along with evidence of an acceptable type of workers’ compensation insurance for the contractor’s employees, a surety bond, and liability insurance.

The surety bond must be in the amount of $12,000 for a General Contractor, and $6,000 for a Specialty Contractor. As an alternative to a surety bond, a contractor may file an assigned savings account with the Department of Labor and Industries. Liability insurance must be in the minimum amount of $50,000 for property damage and $200,000 for public liability, or $250,000 combined single limit coverage.

Washington State Department of Labor and Industries contractor registration forms: http://www.lni.wa.gov/TradesLicensing/Contractors/HowReg/default.as

A Specialty Contractor is a contractor who employs only one building trade or craft on a single project or under a single building permit. Further, a Specialty Contractor is not permitted to hire subcontractors unless such subcontracted work is incidental to the Specialty Contractor’s work.

A General Contractor is any individual or entity who uses more than one building trade or craft on a single project or under a single building permit. It also includes any individual or entity that supervises or consults on such a project.

Washington defines a contractor broadly. A contractor is any individual or entity that, for a business purpose, undertakes or offers to undertake any project that affects real property. This includes the construction, alteration, repair, improvement, development, movement, wrecking, or demolition of buildings, highways, roads, railroads, or the excavation of anything attached to real property. The statute also specifically includes consultants hired to assist with such projects.

Washington law protects contractors and subcontractors from non-payment by permitting them to lien real property they have improved. If the subcontractor is properly licensed, gave all required notices, and filed a proper lien against the property, the subcontractor is entitled to file suit to foreclose against the property and owners. You may have a claim yourself against the contractor or seller who put you in this situation. Also, these situations can often be avoided by purchasing a policy of title insurance when purchasing the home. A policy of title insurance often turns up liens like this, and also may help compensate you if it should have been found by a title search but was not.

Generally there is no requirement that a seller of real estate accept a full-price offer. There may be many terms other than price that justifiably cause a seller to reject a full-price offer. These may include representations or warranties the buyer wants the seller to make, financing terms, inspections, or any other number of conditions. However, if the seller is represented by a real estate agent, the seller may have agreed with the agent to sell a home under certain circumstances. These circumstances are generally spelled out in the Listing Agreement with the agent. If the seller receives an offer that meets all the conditions set forth in the Listing Agreement and refuses to accept the offer, the agent may be entitled to a sales commission under the Listing Agreement.

There are a couple different options for terminating a lease in these circumstances. First, if rent is being paid late you can serve the tenant with a three-day notice to pay rent or vacate. If the tenant does not pay rent within three days of receiving the notice, you can start an eviction.

If the tenants pay rent but continue to cause damage to the property, that is probably a breach of terms in the lease agreement. It is also a violation of Washington law for a tenant to negligently or purposefully destroy or cause damage to the premises. The landlord can give the tenant notice of the non-conformance and either demand repairs, or eventually perform the repairs and charge the tenant for the cost of repairs – to be paid with the next rent payment. The landlord can also begin an eviction if the tenant has not substantially complied with a request to make repairs after 30 days. But if the tenant makes the repairs prior to entry of a judgment in the eviction action, the court may allow the tenant to remain if the initial term of the lease has not expired.

Answer: Probably not. A lease is a contract and should be entered into on careful reflection. There is often confusion about statutes giving a consumer the right to cancel a contract within 72 hours of its making. There are several circumstances when the right to rescind a contract is available under federal law or equivalent state law. The one relating real estate is when a consumer enters into a transaction where she is placing a non-purchase money security interest in her primary residence (like a second mortgage to secure the transaction). Another 3 day to cancel transaction is when a consumer enters into an installment contract to purchase a product for a “door to door” salesperson. Some others with varying number of days to “cool off” are Health Club Memberships, Business Opportunity purchases; Credit Repair services, Hearing Aid purchases, Camping Clubs and trade show purchases. One should always check their paper work and if in doubt consult an attorney before attempting to cancel a non-cancellable contract.

Like any other contract, a real estate purchase and sale agreement cannot be unilaterally cancelled by either party unless the agreement specifically allows for it. Such a blanket provision is unlikely and if it was included it would likely not be an enforceable agreement at all but what the law refers to as an “illusory promise”. However, most properly drafted real estate purchase and sale agreements have written contingencies allowing one party to terminate the contract for a failure of a contingency. For example, an agreement to purchase a home might be contingent on a satisfactory inspection. If the property failed to pass the inspection, the agreement could be terminated for that reason. There is no “cooling off “or “I changed my mind” period for the seller or the purchaser after signing an otherwise valid purchase and sale agreement.

Whether you need a land trust depends on what you hope to accomplish by having one. For most people, a land trust is unnecessary or does not accomplish what they think it will. Following are some reasons often identified for setting up a land trust.

Limited Liability in Case of Personal Injury

Some people want to set up a land trust believing it will limit their liability in the event anyone is hurt on the property. At a minimum, the trust will still be liable for such injuries. For public policy reasons a court may also disregard the trust, finding liability on the part of the true owner. In any event, the best protection from personal injury liability is to purchase liability insurance. Since even a trust should purchase personal injury liability insurance, the cost of setting up and maintaining a land trust may be outweighed by the perceived benefits.

To Avoid a Due-on-Sale Clause

Most loans in Washington – whether documented by a mortgage, note and deed of trust, or real estate contract – contain something called a due-on-sale clause. This clause provides that if the owner ever transfers the property, the full amount of the loan must be paid. Some people believe by setting up a land trust, the beneficial ownership of the property can be transferred without triggering the due-on-sale clause or alerting the bank to the transfer. Although it is true a trust may make it more difficult for the bank to learn of the transfer, many due-on-sale clauses are drafted to provide that transfer of a beneficial interest in a trust is a “transfer” triggering the due on sale clause.

To Avoid Probate

A land trust can be used to avoid probate. But to make this work properly, the owner really should consult with an attorney to ensure that this is done as part of a comprehensive estate plan. If land is included in a trust, but other probate assets are not, a probate will still be necessary. Even then, this may not be the best approach for everyone. Probate in Washington does not need to be a difficult or expensive process. In contrast, the cost of setting up and maintaining a trust can sometimes exceed the cost of a probate. Also, the complexities of maintaining the trust during one’s lifetime may outweigh the benefits.

To Avoid Judgment Liens

Some people want to put their land in a trust to avoid a lien in case they are sued. However, transferring property with intent to avoid a creditor may be a violation of Washington’s Fraudulent Transfer Act, even if the transfer took place prior to the lawsuit. If the Fraudulent Transfer Act has been violated, then the transfer can be undone, among other things.

Conclusion

If done correctly and for the right purposes, a land trust may be useful. However, there are often misconceptions about what a land trust can accomplish. In some situations, a land trust may not be the right solution to a given problem. Before setting up a land trust it is a good idea to discuss your goals and options with a real estate attorney.

A short sale is when a mortgage lender agrees to satisfy a mortgage for less than the full loan amount owed on a property. While each mortgage lender has a slightly different approval process, there are some similarities. First, your lender will ask you to submit general financial information including but not limited to bank statements, tax returns, pay stubs and a budget. Next, your lender will ascertain the value of your property. If you intend on attempting to “short sell’ your property we recommend obtain the services of a real estate broker experienced with short sales and consult your tax accountant for advice on possible adverse tax consequences.

The terms of your contract dictate which repairs are required. Your contract also specifies a time frame in which you must respond to the buyer’s request. You should consult a real state attorney for assistance in interpreting your contract.

A 1031 exchange is a vehicle under the Internal Revenue Code that allows a seller to use the proceeds from the sale of investment property for the purchase of replacement investment (“like kind”) property. As long as the rules are strictly adhered to, the procedure allows a seller to defer the payment of capital gains taxes. A seller desiring to do these needs to include specific language in the sale and purchase agreement and we recommend using a “1031 Exchange Facilitator” which is a special type escrow closer.

The payment of closing costs is a negotiable term under your real estate contract. However, the seller generally pays the following fees:

• Excise Tax on the amount of the sale. This is typically equal to 1.78% of the sales price.
• Cost of the buyer’s title insurance policy and any costs associated with clearing title defects. These costs may include obtaining and recording documents such as Affidavits, Satisfactions or Releases.
  • Some seller’s agree to pay a portion of the buyer’s closing costs.

Attorney’s fees. If the seller hires his or her own attorney to review the closing documents, this charge will generally appear on the closing statement.

We generally recommend that you have your closing funds wire transferred to the escrow account the day before closing to ensure that escrow can disburse timely. Most escrow companies also accept bank certified or cashier’s checks. Consult the closer for instructions.

There are many claims covered under a typical Title Insurance Policy. A few are listed below:

• False impersonation of a seller or other persons previously in title;
• Forgery;
• Improperly executed Deeds;
• Deeds executed without a required spouse’s signature;
• Fraud;
• Undisclosed heirs or descendants of former owners of your property that might have had an interest;
• Survey matters;
• Liens appearing after closing but prior to recording of instruments.

A title insurance policy provides protection for an insured buyer up to the amount of the policy against loss resulting previously unreported land title defects, such as forgeries, deeds by persons without authority, missing heirs and other title defects, liens and encumbrances existing as of the date of the purchase and not excepted from coverage (discovered and disclosed to the buyer). It is a rare transaction where buyer’s title insurance is not recommended by us. If you are financing your purchase, your lender will require that you purchase title insurance insuring the mortgage given at the closing will have a valid lien. Generally the buyers and lenders insurance is issued by the same company simultaneously.

For the most part, the payment of closing costs is a negotiable term under your real estate agreement However, it is customary in Pierce County and elsewhere in Washington that the buyer pays the following costs at closing:

• Wood Destroying Organism (pest) Reports and Home or other Special Inspections.
• Costs Associated with Mortgage Financing. If you are financing your purchase, your lender will provide you with a Good Faith Estimate of Closing Costs. The Good Faith Estimate will include the above described costs as well as the Lender’s costs. (See HUD Web site for guide book http://portal.hud.gov/hudportal/HUD?src=/program_offices/housing/rmra/res/settlement-cost-booklet03252010)
• Recording Fees to record Deeds and Mortgages (Deed of Trust) in the Public Records.
• One-half of the escrow fee.
• A lenders policy of title insurance.

It is not a requirement that an attorney conduct a closing. However, since the cost of title insurance or an escrow does not increase when an attorney represents you at a closing, many buyers hire one to review the closing documents beforehand. While escrow and title insurance companies are generally reliable and efficient, their services are limited to conducting the closing and they cannot offer you legal advice.

A due-on-sale clause is a clause in a real estate loan agreement (mortgage, deed of trust, or real estate contract) that says the lender can demand full payment of the loan if the property is transferred. Transfers can include sales, some lease-to-own agreements, transfer of a controlling interest in the entity that owns the property (such as a corporation), some transfers to trusts, and transfers to family or friends.

However, under federal law, lenders are prevented from enforcing a due-on-sale clauses under certain circumstances. Some such circumstances include:

• A transfer by devise, descent, or operation of law on the death of a joint tenant.
• A lease for less than 3 years that does not include an option to purchase.
• A transfer at death where the transferee is a person who occupies or will occupy the property, and is a relative of the deceased owner.
• A transfer where the spouse or child(ren) becomes an owner of the property following the owner’s death.
• A transfer resulting from a decree of dissolution of marriage, legal separation agreement, or from an incidental property settlement agreement by which the spouse becomes an owner of the property.
• A transfer to a trust as long as the person making the transfer is also the beneficiary of the trust. As a condition of this type of transaction, the lender can require assurances that the lender will be notified if the beneficiary is ever changed.

A buyer or seller has the right to consult an attorney prior to signing. Although many realtors understand the clauses in the Agreement, they are not allowed to explain the legal ramifications to you. We can protect your interests better and help negotiate a specific term the earlier you contact us. We can also provide your realtor with a contingency allowing us to review your Agreement after you sign it.

An escrow company or title insurance company does not and cannot represent any party throughout the closing. The must remain neutral and not provide legal advice to either party to a real estate transaction. It is important to note that even an attorney employed by an escrow or title insurance company cannot represent you. Only an attorney you hire can represent you throughout your transaction.

In Washington, “lease to own” is accomplished when a buyer first becomes a tenant under a written lease that includes as one of its terms an option to purchase the property at some time in the future on specified terms. The lease and option must be drawn carefully and precisely for these transactions to be enforceable and successful.

In Washington, if real estate taxes go unpaid for three years, the county treasurer may file a lawsuit to have the property sold at a public auction.

In Washington most loans on real estate are secured by a Deed of Trust. A Deed of Trust may be foreclosed by the holder of the debt in an out of court process by providing notice to the property owner and the public of a sale date and selling the property at a public auction. The holder of the debt also has the option of filing a lawsuit to collect on the note, obtaining a judgment against the borrower, and after obtaining a judgment, asking the Sheriff to sell the property to apply to the judgment. In addition to, or instead of selling the property, the debt holder can take any other collection measures such as garnishment of wages or bank accounts to collect the debt.

If you object to the relocation of the fence, you should contact a real estate attorney immediately. Legal remedies may be available to restrain the relocation of the fence and have the property boundary restored to its former location.

When people own property as joint tenants, it is presumed they each own an equal share. Upon the death of the first of them to die, the survivor gets title to 100% of the property. On the death of a tenant in common, however, that co-owner’s interest in the property would go to his or her heirs or as directed in that person’s Will.

No, not generally. Deeds to real property are usually recorded as part of the escrow closing. Once recorded with the county auditor, the original deed has no legal significance. Title will be determined by the records in the county auditor’s office.

The grantee, or the one receiving the property described in the deed, is the owner of the property during his or her life. At that person’s death, the property is owned by whoever was to receive the remainder interest under the deed.

In almost all cases in Washington, both a husband and wife must sign any agreement to list, buy, or sell real estate, and both must also sign the deed to the property on closing. Exceptions exist for property owned by only one of the spouses.

Yes, it is always advisable to order a commitment for title insurance and carefully examine the commitment prior to closing the purchase. On closing you should purchase an owner’s policy of title insurance to ensure that there are no judgments, tax liens, or other encumbrances on the property.

Yes, you do need to take some action to let the entire world know that you now own the property as a single person. That can be done by either probating a Will, recording a Community Property Agreement, or by administering the estate of your deceased spouse in a legal proceeding.

In Washington, deeds are defined by statute, and not all deeds are equal. A warranty deed includes warranties that the grantor owns all the rights to the property, has the power to convey it, that the property is free from encumbrances, and that the grantee’s title and right to possession will not be challenged. If title or possession is challenged, the grantor will defend the grantee’s title. A quit claim deed contains no similar promises or warranties. However, either type of deed effectively transfers title to the real estate.

A person contesting the validity of a will or making a claim contrary to the will must start the case within 4 months of the probate being filed. If a challenge to the will is not filed with the court and served on the personal representative, then the probate of the will is final and binding. There is an exception if an interested party is not given notice that a probate has been started. That interested party then has 4 months from discovery of the probate to file a challenge to the will.

Please contact our offices for your questions and concerns about will preparation and estate planning. Our experienced attorneys are here to help you.

There are several different types of tax liability that may exist in the context of an estate. There may be income taxes that the decedent owes, or if the estate is large enough, estate taxes (most estates are small enough that no estate taxes are owed). These taxes should be paid out of the assets of the estate. Absent mismanagement by the executor, these are not personal obligation of the executor. But, it is the executor’s responsibility to make sure these taxes get paid. Also, in many cases, returns must be filed and taxes paid within 9 months of the decedent’s date of death. So it is important for the executor to meet with a tax professional as soon as possible to make sure the necessary returns are prepared in time.

Heirs generally have no tax liability for distributions from the estate, so this is not something the executor should be concerned about taking care of prior to distribution.

Yes, taxes should be paid prior to distribution. Distributions to heirs should be of the net estate. This means the portion of the estate that is left over after taxes, creditors, and administrative expenses have been paid. If tax liability is not determined prior to the distribution then there is no way of knowing if the right amount is being distributed.

If the estate doesn’t have enough money to pay all the bills, the first thing to remember is the personal representative and family do not have to pay those bills from their own funds. The decedent’s estate is liable for the debts of the decedent and creditors cannot collect more than the decedent owned. In such cases, there is a law that prioritizes the order in which creditors get paid. Creditors are put into categories (secured creditors, costs of administering the estate, funeral expenses, medical bills, wages owing, taxes, judgments, and other general debts) and are to be paid in a particular order. If there is not enough money to pay all the creditors in a given class (such as medical bills) then the creditors in that category are paid a pro rata share of what they are owed based upon what all creditors in that class are owed. When the money of the estate runs out, no other creditors get paid.

A personal representative owes a duty to the estate, its beneficiaries and creditors to properly manage the assets and funds of the estate. Technically, there is no rule requiring a personal representative to set up an estate bank account, but doing so is a good idea. Setting up an estate bank account helps prevent co-mingling estate funds with personal or business funds, it provides a place to deposit funds payable to the decedent, and it provides a method to keep track of estate funds. At some point the personal representative will need to provide an accounting, which is easier if the estate funds are kept in their own account.

Washington has laws and procedures in place designed to make probates relatively quick and inexpensive. Also, Washington has adopted procedures that can be substituted for a probate to make the process of handling someone’s estate after their death move quickly and efficiently. An attorney experienced in these types of cases should discuss all available options with you during a first meeting.

Even though Washington has tried to simplify the process of handling a person’s estate after their death, there are still some circumstances where the process can drag on. These reasons often have nothing to do with “probate” itself, but rather with other factors unrelated to process used. Such factors can include a need to sell real estate, handling tax matters, and disputes among family members as to how the estate is to be handled.

The terms “testate” and “intestate” are terms of art used by attorneys that refer to whether a person died with a Will. A testate estate is one where the person died leaving behind a valid Will. An intestate estate is one where there was no Will, or the Will was invalid.

When an estate is testate (there is a valid Will), the decedent’s estate is distributed to the beneficiaries named in the will. The Personal Representative and courts are charged with fulfilling the deceased person’s wishes as stated in the Will.

When an estate is intestate (no valid Will), the decedent’s estate is distributed according to statute. Generally, the statute provides that the estate will pass to the nearest relatives of the deceased person. Contrary to what some people are told, a person’s estate does not pass to the state or government in this situation. A person’s estate will only pass to the state or government (called an “escheat”) if no living relatives of the deceased person can be found after a diligent search.

By using the procedures in Washington’s probate creditor’s claim statute, a personal representative can reduce the time during which a creditor can make a claim against a decedent’s estate. Normally, a creditor has until the expiration of a statute of limitations to file a claim, which sometimes can be up to six years. But by sending out a Notice of Creditors and publishing it in a newspaper, the time for creditors to file claims can be reduced to anywhere from 30 days to 24 months, depending on the circumstances and type of notice provided.

Someone must speak to family members during the probate. In the interest of efficiency and saving money, it is often best if the personal representative keeps open lines of communication with the family. However, if that is simply not possible, then the next person likely to speak with family members is your attorney who will charge for his or her time to do so. Remember that most people put careful thought into who they select as their personal representative. Although you may not feel like you get along with your family, you may have been selected for the job because you are better suited than other family members to keep everyone informed. And finally, remember that serving as personal representative is not mandatory. If you are unable to perform your duties because of conflict in the family, you can decline to serve. If the family situation is particularly difficult, the family can always ask the court to appoint a neutral third party to serve as personal representative.

A personal representative has a duty to diligently search the decedent’s records to find all bank accounts, stocks, and other assets of the decedent. A diligent search includes reviewing the decedent’s mail, personal papers, correspondence, and any other belongings of the decedent that may give clues to what the decedent owned. It is also a good idea for a person to leave a letter of instruction to family members saying how such things can be found in the event of his or her death. However, if something is missed, banks and other third parties have a duty to turn unclaimed property over to the state Department of Revenue. You can search for unclaimed property in Washington by visiting: http://ucp.dor.wa.gov/. Other states have similar unclaimed property departments, many of which can be searched online.

Any person – whether or not a relative – who has an interest in a Will can sue to contest it. Reasons to contest a Will can include competency of the person signing the Will, whether the Will was the product of undue influence or fraud, and any other reasons that might make the Will invalid. A Will contest must be started within 4 months of the start of the probate. After that time, Will contests are barred. If the Will has already been admitted to probate, then the burden of proof rests on the person contesting the Will. If the Will was not probated, then the person claiming the Will is valid has the burden of proof. If a person contests a Will and wins, it is up to the court to decide whether to award costs to the contesting party. If the Will contestant fails to challenge the Will, the court can award both costs and attorney fees against the contestant, unless the court finds the contest was brought in good faith and with probable cause.

You can file a claim in a probate case if you were owed money by the decedent. If the personal representative knows you are or may be a creditor of the estate, you may have a received something called a Notice to Creditors, which explains how you file a claim. Notices to creditors are also published in newspapers to provide notice to creditors who are not known by the personal representative.

If you receive a Notice to Creditors in the mail or by personal service, you must file your claim within 30 days of receiving the notice, or within 4 months after first publication of the notice in a newspaper, whichever is later. If the personal representative would not have identified you as a possible creditor after reviewing the decedent’s papers, and if a Notice to Creditors was published in a newspaper, you must file a claim within 4 months of first publication in the newspaper. If the personal representative could have identified you by reviewing the decedent’s papers and did not send you a notice, or if the personal representative did not publish a notice to creditors in a newspaper or give you notice, you have 24 months from the decedent’s death to file a claim. Failure to file your claim within these time limits bars your claim.

A claim must include: your name and address; the name, address (if different from that of the claimant), and nature of authority of an agent signing the claim for the claimant; a statement of the facts or circumstances constituting the basis of the claim; the amount of the claim; and if the claim is secured, unliquidated, contingent, or not yet due, the nature of the security, the nature of the uncertainty, or the date when it will become due.

The claim must be filed with the court, a copy provided to the personal representative or the personal representative’s attorney.

Yes. Serving as Personal Representative is voluntary. Whether to take on the responsibility may involve several considerations. One thing to consider is that the decedent usually put thought into who was named Personal Representative. The decedent may have felt the named Personal Representative would deal with the family well, had a good business head, and is trustworthy. The job brings with it special responsibilities. A Personal Representative has a fiduciary duty, meaning he or she must act in the best interest of estate beneficiaries and creditors. Failure to meet the fiduciary duties can result in personal liability. So there are some risks associated with taking the job. But for most people, the risks are minimal and can often be minimized by working closely with an attorney experienced in probate matters.

Yes, Personal Representatives are entitled to be paid for their time and expenses. The law presumes that the Personal Representative performs his or her duties with an expectation of payment. Sometimes the Will states how much the Personal Representative is paid. If the Personal Representative feels the compensation stated in the Will is not enough, the Personal Representative can decline to take those fees and ask the court to award “reasonable” fees. Also, if there is no compensation provided for in the Will, the Personal Representative can ask the court to award “reasonable” fees. In determining what a reasonable fee is, the court looks at the value of the overall estate, the nature and complexity of the services performed, the time spent performing such duties, and hourly rates for the type of work performed.

No, “Personal Representative” is simply a more modern term for executor or executrix. An executor (male) or executrix (female) is simply the person named in a decedent’s Will to complete or “execute” the last wishes of the decedent. The term Personal Representative can also refer to administrators (male) and adminstratrixes (female), and guardians.

Even if you do not intend to probate the Will, Washington law requires that you either deliver the Will to the Personal Representative named in the Will (if that is not you), or file the Will with the superior court within 30 days of you learning of the death of the person whose Will you have.

Once the Personal Representative named in the Will has custody of the Will, he or she has 40 days to file the Will with the superior court

No, as with any case, you are always free to represent yourself. However, by hiring an attorney to help you with a probate, you benefit from the training, skills and experience of that attorney. A probate attorney will be much more familiar with the necessary forms, procedures, and practices necessary to successfully complete a probate. This will save you time, and can also speed up the overall process in many cases.

If you do decide to do a probate on your own, some forms can be found online, or at the local county law library. However, librarians and court clerks are not allowed to give legal advice or advise on the proper completion of such forms.

The Washington Supreme Court recently passed a rule authorizing the licensing of “legal technicians” who will be permitted to provide some limited advice and assistance with filling out forms and otherwise navigating the legal process. However, at this time, there are no legal technicians in the area of probate.

There is no rule saying how long a probate must take. In some cases it is possible to complete a probate in a matter of weeks. In many cases it may be advisable to provide notice and opportunity for creditors to file claims with the estate. In these cases it is normal to wait at least 4 months to see if any creditor claims are submitted. If the estate is large enough to be taxable, the probate may take several months to more than a year to conclude. Ultimately, the length of time for a given probate will depend on the specific facts of a given case and what benefits of a probate the family may wish to take advantage of.

Yes, it is possible to avoid probate. Depending on the particular circumstances of a given case, some or all assets may pass to joint account holders, payable on death beneficiaries, or a spouse under a community property agreement. If a person dies owning no real estate and having assets of less than $100,000 it is also possible to avoid probate using something called a small estate affidavit.

Many of the stories people hear about why they should avoid probate are unfounded, especially here in Washington. Washington has a probate process that can potentially be simple, straight-forward, quick, and inexpensive. Probate is simply a legal process where an individual called a personal representative is appointed to wrap up the affairs of the decedent, pay final bills, and distribute the estate to its beneficiaries. Going through probate can even reduce the amount of time that creditors have to collect on a debt of the decedent.

If there are no assets, then no probate is necessary. But you may want to take legal action to handle the outstanding bills. This can be done in a probate proceeding, or by using a process to settle creditor claims for estates passing without probate.

If there are absolutely no assets, then you could simply do nothing, and ignore the calls and correspondence from creditors. The bills left behind by your mother will remain her obligation, and do not become the obligation of the heirs or beneficiaries of the estate.

But any assets of your mother may remain liable for those bills, even if the assets passed to heirs or beneficiaries without probate. If there were assets, creditors could seek payment out of those assets. If nothing is done, the creditors will have until the statute of limitations runs out on their claims to collect against those assets. In some cases, the statute of limitations could be as long as 6 years.

By going through probate, or using the process to settle creditor claims for estates passing without probate, in most situations you can reduce the statute of limitations on these claims to as little as 4 months. This process is set out in statute and is somewhat involved, but can be easily accomplished with the help of an attorney. The peace of mind to heirs and beneficiaries of knowing that creditors won’t come looking for payment out of assets they inherited, may be worth the time and money spent doing a probate, or settling the creditor claims.

The answer depends on who would be taking over the mortgage payments. If the person taking over the payments is a relative of the deceased person, then yes, payments can be taken over. But generally speaking, a transfer of the property to a non-relative triggers something in the mortgage called a “due-on-sale” clause. The due-on-sale clause means that the mortgage company is entitled to payment in full if the property is transferred to someone other than the borrower. Due-on-sale clauses apply to most transfers, whether there is an actual sale or not.

There is a federal law that says a due-on-sale clause cannot be used by a bank to demand full payment if the transfer is to a relative upon the death of the borrower, to a joint owner of the property upon the death of the borrower, or to the borrower’s spouse or children. There are some other exceptions as well, but none apply in this circumstance.

Alternatively, the person wanting to take on the mortgage could agree to purchase the property, obtaining a new purchase loan to pay off the existing mortgage, or possibly apply for a refinance. In some rare circumstances, a bank may also agree to an assumption of the loan by the new owner/borrower.

Yes. But the next question is what purpose re-opening the estate serves? Usually an estate is re-opened if it is discovered that some property was not properly transferred, or some other business to wind up the decedent’s affairs was neglected. The court would need to appoint or re-appoint a personal representative. And reasons should be given to the court – in a petition – for why the estate should be re-opened. Whether the estate will be re-opened will have to be decided by a court.

Possibly. Under Washington law, someone who has been convicted of a felony is disqualified from serving as personal representative (executor or administrator) of an estate. If the felony was correctly removed or “expunged” from someone’s record, then it should be treated as if the felony conviction never existed. Therefore, the person should be permitted to serve as personal representative of the estate. However, when interpreting this statute, courts have held that the list of people disqualified from serving as personal representative is not a complete or exhaustive list. This means the court can decline to appoint someone as personal representative for other reasons not listed in the statute.

Also, if someone is convicted of a felony after being appointed personal representative, the same statute says the court must remove that person.

Estate planning involves the determination of how a person wants their assets or estate distributed after they pass away. It also involves a person’s final health care wishes and how they will be honored. A person’s estate consists of all property they own at the time of their death including: real estate, bank accounts, stocks and other securities, life insurance policies, and personal property.

An estate plan can identify family members and others that you want to receive property after your death. It will provide for that property to be transferred to those persons. Estate planning can involve planning to minimize taxes and expenses to the estate to maximize the value to heirs. In an estate plan, a person can set out the kinds of life-sustaining medical care they wish to receive if they are unable to make their own decisions, and it can specify the kind of funeral or burial arrangement a person wishes to have

A Limited Power of Attorney is a Power of Attorney for a specific or limited purpose, and would allow someone to act on your behalf for only those specific or limited purposes. On the other hand, a General Power of Attorney allows a person to act on your behalf for any purpose. A Limited Power of Attorney could be for one specific purpose such as buying a home, buying a car, or buying/selling stocks and investments. A Limited Power of Attorney would most likely only be valid for a certain period of time, and unless designated as a Durable Power of Attorney it would become invalid if you became incapacitated.

A Durable Power of Attorney is effective until revoked or terminated by a principal, by a court-appointed guardian, or by court order. A Power of Attorney that is recorded with the county auditor is revoked when a revocation is recorded in the same office where the original Power of Attorney was recorded.

In order to revoke the Power of Attorney, you need to give notice to the person who has the Power of Attorney. The best way to do this is by having an attorney prepare a Revocation of the Power of Attorney, and then provide that to the person holding the Power of Attorney. You should also provide the Revocation to any of your financial institutions. If the Power of Attorney is recorded, you will need to record the revocation. Even if the Power of Attorney is not recorded, it would be a good idea to record a revocation anyway.

A prenuptial agreement doesn’t transfer property. The prenuptial agreement specifies who would keep what property, and what property is separate and community. A person can then leave the property that is his or hers to whomever he or she chooses in the will. A will cannot override a prenuptial agreement, because in a will a person can only give away property that is his or hers according to the prenuptial agreement.

Trusts that are established for the benefit of animals are valid and enforceable in accordance with their terms in Washington State. You can establish a Pet Trust for the lifetime care of your pets. You can include a selection of a caregiver, a trustee, and what veterinarians are to be used. You can provide for reimbursement to caregivers, trustees and veterinarians for their services. A Pet Trust can be created by itself, or as part of a Last Will and Testament or Living Trust.

If you don’t want to create a Pet Trust, you can designate a caregiver in your will, and if you would like you can also leave funds to that person for caring for the pet. It is important to name alternate caregivers, in case the first choice of a caregiver in unable or unwilling to assume those duties.

If you have a Durable Power of Attorney you can include a provision that allows your agent to make care decisions for your pets in case you are unable to do so at any time during your life.

Washington law provides that if a transfer depends on an individual surviving the death of another, the individual surviving must survive the other person by one hundred and twenty hours, or it will be treated as if they predeceased the other person.

In your will, you will want to provide for an alternate beneficiary, and potentially a second alternate as well, in case your primary beneficiary does not survive you by one hundred and twenty hours as required by state law.

No, a power of attorney is revoked upon the death of the person who signed it. At that point in time, the personal representative, executor, or administrator becomes responsible for handling the estate.

A power of attorney is good to have in place in the event you become injured or are otherwise unable to handle your own affairs, whether you have personal, medical, or financial issues to manage. In many cases, having a power of attorney can help you avoid the expense of a guardianship if for some reason you are no longer able to care for yourself or your finances. A power of attorney can also be useful for people who are traveling and need someone back at home to handle financial or real estate matters for them.

When an individual dies without a valid will, his or her estate is considered “intestate.” In that case, Washington has a statute that specifies exactly how the decedent’s assets are to be distributed. Assuming the estate is solvent, meaning its assets exceed its debts, then his estate will be distributed as follows:

• If your father died leaving a surviving spouse, the surviving spouse will receive:
  • All of your father’s share of their community property; and
  • One-half of his separate estate.
• You and your siblings, if any, will receive the remainder of your father’s estate, or all of your father’s estate if he had no surviving spouse.

If your father had no spouse or surviving children, then his estate would pass to other relatives in the following order: grandchildren, great-grandchildren, parents, siblings, nieces and nephews, etc.

Although many people believe a decedent’s assets will go to the State or another governmental entity if they had no will, that is highly unlikely. This would only happen in the event the decedent had virtually no surviving family. However, that does not mean a will is useless. A will allows an individual to specify exactly how his or her assets are to be divided, identify who will handle his or her estate (the Personal Representative), and state whether the Personal Representative will have to post a bond. If any assets pass to a minor, the will can also specify who will handle the asset(s) on behalf of the minor. For those with minor children, the will can also specify who will take care of the children in the event both parents die. These considerations, along with many others, make wills an extremely cost-effective way to ensure an individual’s wishes are honored upon his or her death.

A power of attorney is a legally enforceable document in which you give someone else (an “attorney in fact”) authority to act on your behalf. A “durable” power of attorney remains effective even if you later become legally incompetent for some reason. Powers of attorney can be effective immediately or effective only upon disability. Powers of attorney can also be general, covering all types of decisions; or they can be specific, such as for medical decisions only.

A “living will” is also called a Directive to Physicians in Washington. A Directive to Physicians is a legally enforceable document signed by you that states you do not want your death to be artificially prolonged. Unlike a medical power of attorney, you are not appointing someone to make these end of life decisions for you. You are expressing your intent and wishes in the Directive and asking your family, doctors, lawyers, and clergy to honor those wishes. In Washington, you can also direct that your physicians administer drugs or narcotics to ease your pain and suffering to improve your quality of life in the event you are terminally ill and not otherwise able to make your wishes known.

In order for a will to be enforceable, it not only needs to be prepared correctly, it also needs to be signed and witnessed properly. Many do-it- yourself will packages are generic and not state specific, and therefore may not meet the requirements to be valid under Washington law. And those packages that are state specific still require some drafting or filling in the blanks. Doing this yourself may result in unintended consequences after your death. Having an attorney select the proper will form, draft it to your specific needs, and ensuring that it is signed and witnessed properly is usually not much more expensive than a do-it-yourself kit, and should give you added peace of mind that it is done correctly.

Even if you have a trust, you still need to have a will. A trust will only take care of a property that is titled or kept in the trust. To be effective, a trust should be accompanied by something called a pour-over will to put any property that may have been forgotten into the trust upon your death. Also, using a trust just because you want to avoid probate may not make sense legally or economically. Probate in Washington is generally not a difficult, lengthy, or costly process. In some cases, the cost of preparing a trust can be 10 times the cost of preparing a simple will, and in some cases the cost of a trust may exceed the cost of an entire probate. Before deciding to use a trust for estate planning purposes, you should consult a will and trust attorney to see if it accomplishes your goals, both legally and economically.

Because you may want your property divided among your family or friends differently than provided by law. Also, without a will, all of your property is treated the same. It will all go to one person or group of persons, such as a spouse, siblings, or parents, without differentiation. By preparing a will, you can specify which of your property goes to which family, friends, or other beneficiaries.

Contrary to what many people think, the state will not take your property if you die without a will. Washington has a set of laws that detail who will inherit your property upon your death. Generally speaking, the relatives most closely related to you will inherit from you if you die without a will.

A will is a legally enforceable document expressing your wishes for what should be done with your estate following your death. It generally names a personal representative (also sometimes referred to as executor or administrator) who is responsible for fulfilling your stated wishes. In addition to stating what you want done with your estate upon your death, you can also nominate a guardian for your minor children and state your wishes as to your funeral in your will.