Latest / Ask the Lawyer / 09/17/2026 Ask the Lawyer with Tom Peyton

Transcript

09/17/2026 Ask the Lawyer with Tom Peyton · Ask the Lawyer

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  Speaker 1: The views and opinions expressed on this program do not
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  Speaker 1: necessarily reflect the views and opinions of 580 WCHS, its employees,
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  Speaker 1: or WVRC Media.
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  Speaker 2: In our courts, all men are created equal.
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  Speaker 3: We're mass communicating!
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  Speaker 2: Breaking rocks in a hot sun, up on the low,
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  Speaker 2: in a low world.
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  Speaker 3: And a very pleasant good morning to you. You can
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  Speaker 3: put the law on your side this morning. Tom Payton
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  Speaker 3: is here from the Payton Law Firm, 304-345-5858 is our number, 304-345-5858.
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  Speaker 3: You can also text 304-935-5008. Tom, good morning. How are
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  Speaker 3: you doing this morning?
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  Speaker 4: I'm doing great.
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  Speaker 3: How are you, Coop? Doing very well. Another nice day.
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  Speaker 3: Going to be hot again today, man. I thought we
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  Speaker 3: took our foot off the gas a little bit with
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  Speaker 3: this heat, but we're going to finish up September very,
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  Speaker 3: very hot, I think. Another day in the 90s today,
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  Speaker 3: so keep a lookout for that. But Nice day. It's
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  Speaker 3: been really white outside, like that bright sun and blue skies.
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  Speaker 3: It's been like a washout.
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  Speaker 4: Yeah, I might get a thunderstorm or two today.
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  Speaker 3: A little better. Yeah, it was really hot yesterday.
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  Speaker 2: I had court in two different locations, so it's not
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  Speaker 2: that fun to be wearing a suit out in the
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  Speaker 2: 98-degree weather. But, you know, in three months, we'll be
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  Speaker 2: complaining about the cold.
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  Speaker 3: Exactly. I'm a hot person.
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  Speaker 4: I'd rather be hot than cold.
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  Speaker 3: Me too, generally.
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  Speaker 4: Anytime, so it doesn't bother me any, but. Anyway, glad
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  Speaker 4: to be here today.
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  Speaker 2: Dad's actually down in Asheville, North Carolina area visiting my
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  Speaker 2: brother and his family, but it's a special day for
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  Speaker 2: him because it's his birthday today.
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  Speaker 3: Well, I'll be darned.
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  Speaker 4: I want to wish Dad a happy birthday.
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  Speaker 3: Happy birthday, Harvey.
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  Speaker 2: You won't see him probably, but if you send him
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  Speaker 2: an email or a text or maybe post on Facebook
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  Speaker 2: wishing him happy birthday, he's 77 today, so I was
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  Speaker 2: just thinking when we started this show, he's he was
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  Speaker 2: a year older than me to when we started this show,
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  Speaker 2: which is, uh, 28, 27, 28 years ago. So it
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  Speaker 2: kind of puts things in perspective, I guess. Um, but
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  Speaker 2: happy birthday to dad. I'm not going to sing happy
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  Speaker 2: birthday to me. Maybe if he was here, uh, nobody
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  Speaker 2: wants to hear that, but any little, uh, we've got a, uh,
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  Speaker 2: A little event I kind of wanted to mention here, too,
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  Speaker 2: coming up. This is Saturday. It's the All Horse Parade.
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  Speaker 2: It's a fundraiser for hospice care, and it's down in Buffalo.
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  Speaker 2: So if you're ever that way or you've got some
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  Speaker 2: time Saturday and want to make a trip, they've got
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  Speaker 2: a little run-walk in the morning at 8, and then
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  Speaker 2: there's an All Horse Parade at noon. Gospel music, 1230
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  Speaker 2: to 2. I'm not really into gospel music, but it's
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  Speaker 2: Midnight Storm, Gospel Bluegrass Band. And then they have an
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  Speaker 2: Amish food truck and then an auction up to. And
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  Speaker 2: Melody at our office participates and her husband helps administer it.
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  Speaker 2: So I would have mentioned that we also donated some
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  Speaker 2: basketball tickets. So if you want to go down to
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  Speaker 2: the auction and see, we've got good seats. It's the,
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  Speaker 2: I think, actually we donated tickets to the opening game.
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  Speaker 2: It's not, I think it's Niagara, so not the biggest,
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  Speaker 2: game in the world, but it's always kind of neat
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  Speaker 2: to go to the first real game and have all
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  Speaker 2: new players. It's your first chance to take a look.
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  Speaker 2: And if you, you know, our seats are, we do
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  Speaker 2: have good seats. We actually had to, any season ticket
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  Speaker 2: holders for basketball know that they redid all the seats
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  Speaker 2: this year. And actually the student section for basketball games
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  Speaker 2: will not be right beside the floor any longer. The
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  Speaker 2: students will be behind the basket at the end of
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  Speaker 2: the visitor's bench, which is actually where some of our
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  Speaker 2: better seats were. So we got, shifted around but still
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  Speaker 2: have really good seats so we got four seats uh
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  Speaker 2: to the best opening day basketball game for the mountaineers
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  Speaker 2: for auction along with the parking pass white lot pass
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  Speaker 2: which is if you've tried to go to a game
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  Speaker 2: at the coliseum uh parking sometimes can be the biggest
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  Speaker 2: biggest hurdle so the white white lot pass is really
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  Speaker 2: good but anybody's out and about or has some time
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  Speaker 2: on saturday might head down to buffalo and check it
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  Speaker 2: out and uh certainly it's for a uh good cause.
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  Speaker 2: And if you want to, you can bid on our
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  Speaker 2: basketball tickets.
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  Speaker 3: There you go. That's good stuff.
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  Speaker 5: Yeah.
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  Speaker 3: And that's a, it's a nice, uh, that's a nice
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  Speaker 3: game to be able to go to.
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  Speaker 1: And you're right.
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  Speaker 3: Man, let me get the parking and everything all in
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  Speaker 3: one package. That's always a good thing.
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  Speaker 1: Yeah.
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  Speaker 4: And our seats are, you know, we got what they
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  Speaker 4: call floor seats.
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  Speaker 2: It's actually, I think one row up underneath the, the basket,
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  Speaker 2: but yeah, you walk on the floor to get to them.
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  Speaker 2: So you're really close to the players. And then we've
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  Speaker 2: got our second, we actually have two and two. So
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  Speaker 2: it's two seats and then two seats in a different location,
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  Speaker 2: but they're, both on the same side and the other
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  Speaker 2: two are eighth row behind the Mountaineer bench. So, uh,
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  Speaker 2: pretty good spot to watch a ball game. And, and, um,
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  Speaker 2: if you want to get a shot at it, head
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  Speaker 2: down to Buffalo this, uh, Saturday afternoon, put a bid in. Otherwise, uh,
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  Speaker 2: listen to the news this morning, a couple of things
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  Speaker 2: locally going on. We've got the, uh, sounds like judge
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  Speaker 2: Ballard approved a class action settlement. So we're finally, uh,
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  Speaker 2: kind of coming to the conclusion of this saga where the,
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  Speaker 2: I think they've kind of pinned it on one state trooper,
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  Speaker 2: but it put, installed these cameras, some kind of secret
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  Speaker 2: cameras in the, I think it was just the women's
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  Speaker 2: locker room, maybe in the showers or something like that.
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  Speaker 2: And then, as I recall, that particular person passed away
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  Speaker 2: maybe before this was even disclosed. It was all unusual
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  Speaker 2: the way it unfolded. It's horrible that it happened, but
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  Speaker 2: I think it was like a whistleblower, random anonymous letter
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  Speaker 2: that went to governor justice and started looking into it. Well, yeah,
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  Speaker 2: there was somebody, uh, but they, they've resolved it. There
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  Speaker 2: was some interesting insurance coverage issues that went in favor
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  Speaker 2: of the victims. And, uh, I think it's a $ 9. 1
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  Speaker 2: million settlement for, it's a class action. So that money
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  Speaker 2: will be, uh, we're not involved in it, but generally
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  Speaker 2: the way it works, that money will be, uh, kind
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  Speaker 2: of prorated between, um, the victims, depending on maybe how
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  Speaker 2: much time they spent at the, I think it was
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  Speaker 2: up at the Academy. Um, and so that that's getting resolved.
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  Speaker 2: And then the other thing that was in the news
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  Speaker 2: this morning was the, uh, might remember, I think it's
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  Speaker 2: been a couple of years ago, but there was Shawnee
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  Speaker 2: park does stay really, really busy over there, uh, with
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  Speaker 2: all the ball fields and everything. And there was an
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  Speaker 2: event going on and kids playing all of a sudden
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  Speaker 2: there was shooting. Uh, I don't know if it was inside.
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  Speaker 2: I don't think it was inside the grounds, but just
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  Speaker 2: right outside the grounds. And so they, they, uh, charged
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  Speaker 2: three people with that. One of them, um, actually took
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  Speaker 2: it to a jury trial and he was acquitted, but
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  Speaker 2: the other two entered, entered pleas. And, uh, they're before
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  Speaker 2: judge acres. Um, they're obviously younger individuals because they were
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  Speaker 2: sent to the Anthony center. A lot of people don't
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  Speaker 2: know what the Anthony center is, but, um, In West Virginia,
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  Speaker 2: if you're 23 years of age or younger and you're
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  Speaker 2: convicted of a crime in the circuit court, which is
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  Speaker 2: usually a felony, could be multiple misdemeanors, the judge has
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  Speaker 2: discretion to send you to the Anthony Center. I've been
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  Speaker 2: down there. I've had to visit clients down there before.
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  Speaker 2: It's in Greenbrier County. Nice facility. It's a prison-style setting,
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  Speaker 2: sort of a prison boot camp-style setting, programs. But when
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  Speaker 2: you get sentenced to that, which these two fellows did,
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  Speaker 2: it's indeterminate. It's either six months or as little as
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  Speaker 2: six months or up to two years, and you've got
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  Speaker 2: to complete a program they set for you. So if
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  Speaker 2: you do well, don't get in trouble and participate fully,
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  Speaker 2: you can actually complete it in six months. You can
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  Speaker 2: take up to as long as two years.
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  Speaker 3: It's good and bad.
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  Speaker 2: If you make it through the program, then the law
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  Speaker 2: requires that the judge then just put you on probation,
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  Speaker 2: which is what happened to these two guys. I listened
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  Speaker 2: to them talk on the radio there they had some
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  Speaker 2: sound bites from the hearing yesterday it seemed like they
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  Speaker 2: were saying all the right things like they've learned and
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  Speaker 2: we're thankful to the judge for sending them there I
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  Speaker 2: think the idea is to teach them life skills work
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  Speaker 2: habits that kind of thing and because they're all youthful
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  Speaker 2: offenders they don't get mixed in the general prison or
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  Speaker 2: jail population where you have maybe older hardened criminals in
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  Speaker 2: there and the hope is that they can be rehabilitated
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  Speaker 2: and be uh, good members of society. So we'll, we'll
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  Speaker 2: hope that that plays out, but yeah, it's a, it's
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  Speaker 2: a good program. A lot of people, you don't really
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  Speaker 2: want to know about it because if you know about it,
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  Speaker 2: you're probably subject to it or you've been a victim
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  Speaker 2: or something to a crime, but, but that's what's happened there. And,
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  Speaker 2: and judge acres, uh, once they complete the program, no choice,
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  Speaker 2: they get to, um, be on probation. Now that the
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  Speaker 2: other problem with that is if you go in and fail,
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  Speaker 2: which I've had clients do, um, you get sent to prison.
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  Speaker 2: And that's also pretty much automatic if you fail the
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  Speaker 2: Anthony Center. So when you hear that news today and
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  Speaker 2: hear the words Anthony Center, that's the Youthful Correction Center
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  Speaker 2: in West Virginia, which is a good program and certainly
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  Speaker 2: a good idea if a person's under 23 and charged
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  Speaker 2: with a crime, they can potentially be sent there. It's
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  Speaker 2: not automatic. The judge has to decide. But it's a
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  Speaker 2: good program. They completed it. So we'll hope for the
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  Speaker 2: best for them. I don't think anybody was hurt. It
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  Speaker 2: was just kind of a, Random shooting, I think, popping
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  Speaker 2: off guns. There were shots fired, but I don't think
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  Speaker 2: anybody was hurt. I don't really get into the context
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  Speaker 2: of why they were shooting. Some dispute that had absolutely
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  Speaker 2: nothing to do with the ball fields and the kids
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  Speaker 2: out there are playing, but they, you know, it was
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  Speaker 2: a mass evacuation and major ordeal when it happens.
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  Speaker 5: So. Yeah.
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  Speaker 3: I think the center seems like, uh, it also gives
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  Speaker 3: you an experience of sort of like the, the, the
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  Speaker 3: waiting room to actual prison. So you go there and
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  Speaker 3: you're learning these skills and also you, whatever situation you're in,
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  Speaker 3: whatever discomfort there is, you know, that it's so much
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  Speaker 3: worse if you actually go to actual prison. So there's
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  Speaker 3: probably some deterrence there.
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  Speaker 4: That's right. There is.
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  Speaker 2: I mean, it's, it's a, secure setting. Like there's some,
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  Speaker 2: if you go to, uh, I've had to visit Prunty
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  Speaker 2: town before, which is up in Grafton. This is all
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  Speaker 2: when I'm, you know, representing, I used to do a
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  Speaker 2: lot of appointed work, uh, earlier in my career. So
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  Speaker 2: you get folks that have been sentenced and things like that.
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  Speaker 2: Prunty town, if you got there, it's minimum security. It's
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  Speaker 2: almost like a campus. And there's a little bit of
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  Speaker 2: a trust factor. Like you can walk around and you
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  Speaker 2: can go to the library and you can go to
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  Speaker 2: the ball field and there's recreation and things, go to
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  Speaker 2: the library. And it's, open air. I was, I was
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  Speaker 2: kind of surprised, but the penalties are extremely stiff for
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  Speaker 2: attempting to escape. And, you know, I think the idea
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  Speaker 2: is most of those, uh, folks that are in those
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  Speaker 2: minimum security prisons know that there's, they can see the
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  Speaker 2: light at the end of the tunnel. They're not in
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  Speaker 2: there for life or maybe a few years, something like that. So, uh, Anthony.
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  Speaker 4: Center is different.
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  Speaker 2: It's, it's, it's secure and it does feel like prison
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  Speaker 2: setting and you lose your freedom of movement and, And,
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  Speaker 2: you know, you're getting the food that they serve there
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  Speaker 2: and the sleeping arrangements they have there and the minimal activities. So, yeah,
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  Speaker 2: you're exactly right. It kind of gives the defendant a
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  Speaker 2: taste of what it would be to go to the
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  Speaker 2: real prison without exposing them to maybe factors that might
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  Speaker 2: not help them rehabilitate when they're in there with older,
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  Speaker 2: kind of hardened, we'll say, defendants that have been convicted
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  Speaker 2: and sentenced. sometimes for decades or longer, in prison.
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  Speaker 3: 304-345-5858, 304-345-5858. If you want to put the power of
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  Speaker 3: Peyton on your side this morning, I've got to kind
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  Speaker 3: of talk about some general things this morning, but if
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  Speaker 3: you have something specific you want to address with Tom,
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  Speaker 3: maybe for yourself or a loved one, if you know
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  Speaker 3: of a problem that a loved one has in your
• 12:08
  Speaker 3: wanting to help them try to figure things out and
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  Speaker 3: want to be proxy, you can give that a try too.
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  Speaker 3: Give us a call this morning, 304-345-5858. Put the power
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  Speaker 3: of Payton on your side with Tom Payton from the
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  Speaker 3: Payton Law Firm online. It's paytonlawfirm.com, P-E-Y-T-O-N, paytonlawfirm.com in Nitro,
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  Speaker 3: West Virginia.
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  Speaker 2: Yeah, we do a lot of civil litigation. Those that
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  Speaker 2: listen regularly probably know kind of what we do, but
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  Speaker 2: a lot of car wrecks, a lot of insurance disputes,
• 12:33
  Speaker 2: still handling cases frequently. been the fallout from the big
• 12:36
  Speaker 2: hail storm that happened in the Nitro-Tays Valley area in
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  Speaker 2: April 2025. So those are, if you're still fighting an
• 12:46
  Speaker 2: insurance company about your hail damage, feel free to give
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  Speaker 2: us a call or send us an email. We're still
• 12:51
  Speaker 2: taking those cases. We've got to screen it and make
• 12:53
  Speaker 2: sure it's a case that we're able to take. But
• 12:55
  Speaker 2: those are all, if you have a dispute against an
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  Speaker 2: insurance company, whether it's your own company or maybe somebody else,
• 13:04
  Speaker 2: hit you in a car wreck or something like that. We,
• 13:05
  Speaker 2: we handle all those cases if we take them on
• 13:08
  Speaker 2: contingency fees. So you don't have, you don't know it's anything,
• 13:11
  Speaker 2: you don't pay any money up front and we only recover, uh,
• 13:15
  Speaker 2: if we actually get a positive result for you. So
• 13:19
  Speaker 2: no harm in harm in calling. Now, what we also
• 13:23
  Speaker 2: do is kind of stuff that more people have to
• 13:26
  Speaker 2: deal with everyday things that folks got to deal with
• 13:28
  Speaker 2: in their lives. So we do some deed work. We do, um,
• 13:33
  Speaker 2: good bit of estate planning, wills, that kind of thing.
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  Speaker 2: Last week, you asked me what maybe the number one
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  Speaker 2: issue is we get calls about, and I referenced the
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  Speaker 2: state administration. And then we got a flurry of calls
• 13:50
  Speaker 2: or texts coming in. So, you know, I thought maybe
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  Speaker 2: we would– the probate process, which– You see a lot
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  Speaker 2: of AI lawyering these days. And of course, Google and
• 14:01
  Speaker 2: the internet's been around for a while. So people call
• 14:05
  Speaker 2: and they've gained some knowledge that way. That's a start
• 14:10
  Speaker 2: and it's a satellite view, but it doesn't tell you
• 14:12
  Speaker 2: how to practice law and it doesn't apply those general
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  Speaker 2: principles very well to.
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  Speaker 4: The specific facts of a specific situation.
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  Speaker 2: But I get an awful lot of people that, call
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  Speaker 2: and just mention trust because they Googled it or somebody's
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  Speaker 2: told them they need to trust. And I'm not a
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  Speaker 2: big advocate of trust unless there's a particular reason that
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  Speaker 2: you need it. And then you hear the words probate
• 14:43
  Speaker 2: and it's like Darth Vader or something. We got to
• 14:46
  Speaker 2: get avoid probate. And that is, you know, it can
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  Speaker 2: be helpful to avoid probate. I would say in West
• 14:54
  Speaker 2: Virginia and probate is just the, it's a rather general
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  Speaker 2: term in the law, but it, it basically is a
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  Speaker 2: term that means it's the process by which an estate
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  Speaker 2: is administered. Um, whether you have a person passes with
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  Speaker 2: a will, then the will is admitted to probate. If it's,
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  Speaker 2: if it's, uh, legitimate. And then the will of course
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  Speaker 2: controls where property goes. Um, and it's also probate. If
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  Speaker 2: you don't have a will, it doesn't go, your property
• 15:24
  Speaker 2: doesn't go to the state. Uh, extremely rare circumstances where
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  Speaker 2: that could ever happen. But the legislature has essentially created
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  Speaker 2: a will for everyone, and it's called intestate succession. And
• 15:36
  Speaker 2: so if you don't have a will or you have
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  Speaker 2: somebody pass that doesn't have a will, then the law
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  Speaker 2: fills those gaps, and it doesn't always go where the
• 15:45
  Speaker 2: deceased person would want their property to go, which is
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  Speaker 2: one of the reasons it's important to get a will done.
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  Speaker 2: And when we do wills in our office and do
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  Speaker 2: them properly, you know, we have some bells and whistles
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  Speaker 2: in there that makes– the probate process much simpler. But
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  Speaker 2: in West Virginia, we essentially have non-judicial probate. And that
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  Speaker 2: means you don't need to go to the court. We
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  Speaker 2: don't really have a probate court, so to speak. The
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  Speaker 2: county commission administers estates usually through fiduciary supervisors offices, which
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  Speaker 2: are kind of the office. It's like a sub-office of
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  Speaker 2: the county commission that handles the estate administration process.
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  Speaker 4: Process.
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  Speaker 2: But probate in West Virginia, it's easy for me to
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  Speaker 2: say because I've been doing it for 26 years, but
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  Speaker 2: it's fairly simple compared to other states. So if you're
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  Speaker 2: out there thinking about a trust to avoid probate, certainly
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  Speaker 2: give us a call. We can talk about your particular situation.
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  Speaker 2: You don't necessarily need a trust just to avoid the
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  Speaker 2: probate process in West Virginia. But when you come to
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  Speaker 2: us for wills or estate planning, we talk about non-probate transfers.
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  Speaker 4: And I think.
• 16:53
  Speaker 2: There are a lot of advantages to that. Non-probate just means,
• 16:56
  Speaker 2: examples are if you co-own something with another person. So
• 16:59
  Speaker 2: you've got a deed with right of survivorship with your
• 17:02
  Speaker 2: spouse or maybe another person, then that property, if one
• 17:06
  Speaker 2: of those owners passes away, has nothing to do with probate.
• 17:08
  Speaker 2: It just automatically belongs to the survivor. And that's the
• 17:11
  Speaker 2: same way with car titles for the most part. If
• 17:14
  Speaker 2: it says or between the names, which I think is,
• 17:16
  Speaker 2: I was actually in DMV the other day getting, I
• 17:18
  Speaker 2: was listening in on the DMV workers and what are
• 17:22
  Speaker 2: they going to tell this person Cause he wanted to quit,
• 17:24
  Speaker 2: add somebody's name to a title or something. And they,
• 17:27
  Speaker 2: they pretty well just tell you we're in or state.
• 17:29
  Speaker 2: So you probably want to do that. You can put
• 17:31
  Speaker 2: and between the names on car titles. Um, but that
• 17:37
  Speaker 2: if you're out there listening, you really want to go with,
• 17:40
  Speaker 2: or probably if you have, and let's say me and
• 17:43
  Speaker 2: Dale Cooper are on a car title and it's the
• 17:46
  Speaker 2: word and is between our names. And then I pass away.
• 17:50
  Speaker 2: Maybe I have a will. Maybe I don't. Well, My
• 17:54
  Speaker 2: half interest in that car then passes by my will
• 17:57
  Speaker 2: or through intake state succession. If I don't have a will,
• 18:01
  Speaker 2: then you have this weird dynamic where you've got a
• 18:03
  Speaker 2: half interest in a car going through somebody's estate. And
• 18:07
  Speaker 2: then the other owner still owns the other half of
• 18:09
  Speaker 2: the vehicle. Now, if you have or between the names,
• 18:12
  Speaker 2: it's a survivorship. So in the scenario I just laid out,
• 18:17
  Speaker 2: if I pass away and you're still living, you don't
• 18:19
  Speaker 2: have to do anything. You just carry on. You're the
• 18:21
  Speaker 2: single owner. doesn't go through probate, my half interest just
• 18:25
  Speaker 2: automatically transfers to Dale Cooper by virtue of the language
• 18:29
  Speaker 2: on the car title. Bank accounts almost universally, if you
• 18:33
  Speaker 2: have somebody else's name on your bank account to help
• 18:35
  Speaker 2: for whatever purpose. There's a statute in West Virginia that
• 18:38
  Speaker 2: says if one person passes away, the bank is basically
• 18:44
  Speaker 2: directed to allow the survivor to control and own the account.
• 18:47
  Speaker 2: And that account in all likelihood wouldn't go through probate
• 18:51
  Speaker 2: or by the will of But if you can set
• 18:54
  Speaker 2: up transfers like that and get done what you want,
• 18:55
  Speaker 2: there's a potential that there won't be any need to
• 18:59
  Speaker 2: probate someone's estate at all when they pass away. The
• 19:02
  Speaker 2: other common non-probate transfers are anything where you can fill
• 19:07
  Speaker 2: out one of those beneficiary forms. Most common is life insurance.
• 19:11
  Speaker 2: Everybody knows you buy life insurance. Obviously, when you do,
• 19:13
  Speaker 2: you realize when this pays out, I'm not going.
• 19:15
  Speaker 4: To be around.
• 19:16
  Speaker 2: So you fill out a form, a beneficiary form, and
• 19:20
  Speaker 2: you can normally name a primary beneficiary, and then a contingent.
• 19:25
  Speaker 2: So if the primary person's passed before you, you've already
• 19:27
  Speaker 2: got backup people to get it. When you fill out
• 19:29
  Speaker 2: those beneficiary forms with individuals' names, that's a non-probate transfer.
• 19:35
  Speaker 2: And life insurance is probably the most common example, but 401ks, IRAs, annuities,
• 19:45
  Speaker 2: if you have a stock portfolio type plan with these
• 19:47
  Speaker 2: bigger financial advising firms like Morgan Stanley, Vanguard, things like that, Fidelity,
• 19:52
  Speaker 2: or pensions if they happen to have a death benefit
• 19:54
  Speaker 2: to them. All of those assets, which is oftentimes where
• 19:58
  Speaker 2: folks have a substantial portion of their estate, if you
• 20:02
  Speaker 2: fill out the forms, that's non-probate. So if you have
• 20:05
  Speaker 2: a family member or a loved one or a friend
• 20:08
  Speaker 2: where you might be thinking about going down and getting
• 20:12
  Speaker 2: appointed and probating their estate. I always tell folks, if
• 20:18
  Speaker 2: you really can't find anything other than the kind of
• 20:20
  Speaker 2: items I just listed off, you might not actually need
• 20:22
  Speaker 2: to probate. And so it's always good if you think, well,
• 20:25
  Speaker 2: I don't know, everything seems to be co-owned or automatically
• 20:28
  Speaker 2: transferring through beneficiary forms. You might want to give us
• 20:31
  Speaker 2: a call or send us an email. And usually we
• 20:34
  Speaker 2: can have talk for just a few minutes and kind
• 20:36
  Speaker 2: of determine, do you need to actually go through the
• 20:38
  Speaker 2: probate process at this time? Once you get sworn in
• 20:42
  Speaker 2: and you're kind of stuck with the process, and I've
• 20:45
  Speaker 2: had a lot of people over the years kind of
• 20:47
  Speaker 2: call me after the fact, and they're paying me to
• 20:49
  Speaker 2: administer the estate, and there's just not, you still have
• 20:53
  Speaker 2: to jump through all the hoops of the probate process,
• 20:55
  Speaker 2: even though there may not be anything, anything that has
• 20:59
  Speaker 2: any real market value to be administered through the probate process.
• 21:04
  Speaker 2: But once you get in it, you're kind of stuck
• 21:06
  Speaker 2: in it. So I think it's always a good idea,
• 21:08
  Speaker 2: you know, folks call the courthouse naturally to ask what
• 21:11
  Speaker 2: to do. And as we talked about last week, the
• 21:16
  Speaker 2: people at the courthouse, I think they certainly are trying
• 21:18
  Speaker 2: to be helpful, but they're not lawyers. They can't give
• 21:20
  Speaker 2: legal advice. And most of them are not attorneys. So
• 21:27
  Speaker 2: you don't get the same analysis. And oftentimes they're direct avoid,
• 21:31
  Speaker 2: The easy answer when somebody asks is, well, yeah, you
• 21:33
  Speaker 2: have to probate, but that's not actually the case. And
• 21:36
  Speaker 2: so I always encourage folks, if you are getting ready
• 21:40
  Speaker 2: to dive into an estate and get sworn in, you
• 21:43
  Speaker 2: might give us a call first just to see if
• 21:44
  Speaker 2: it's something where maybe you don't need to probate at
• 21:47
  Speaker 2: this time and it will save you a significant amount
• 21:49
  Speaker 2: of time and money as well.
• 21:53
  Speaker 3: That's great information from Tom Payton from the Payton Law Firm.
• 21:55
  Speaker 3: You can find out more information online. It's PaytonLawFirm.com, P-E-Y-T-O-N, PaytonLawFirm.com.
• 21:59
  Speaker 3: Every Thursday right here on Ask the Lawyer, 580-WCHS, The
• 22:02
  Speaker 3: Voice of Charleston. We need to take a commercial break.
• 22:04
  Speaker 3: When we come back, we still have plenty of time.
• 22:06
  Speaker 3: If you want to get in, we talked last week.
• 22:07
  Speaker 3: We had plenty of phone calls and texts. You can
• 22:09
  Speaker 3: get in the last few minutes of the show this
• 22:11
  Speaker 3: morning if you want to. You can give us a call, 304-345-5858.
• 22:12
  Speaker 4: 345-5858.
• 22:12
  Speaker 3: You can text 304-935-5858. We'll take a break and be
• 22:19
  Speaker 3: back right after this. You're listening to Ask the Lawyer
• 22:21
  Speaker 3: with Tom Payton from the Payton Law Firm on 580 WCHS,
• 22:24
  Speaker 3: the voice of Charleston.
• 22:25
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• 22:27
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• 22:46
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• 22:49
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• 22:52
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• 22:55
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• 22:57
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• 23:36
  Speaker 3: It's 14 minutes now until the top of the hour.
• 23:37
  Speaker 3: You're listening to 580 WCHS, the voice of Charleston. It
• 23:40
  Speaker 3: is Ask the Lawyer. Tom Payton is here from the
• 23:42
  Speaker 3: Payton Law Firm online, paytonlawfirm.com, P-E-Y-T-O-N, in Mitro, West Virginia.
• 23:46
  Speaker 3: In the break, we got a call. It is Eddie
• 23:48
  Speaker 3: who's called in on the line. Eddie, good morning. Where
• 23:50
  Speaker 3: are you calling from this morning?
• 23:52
  Speaker 5: Charleston.
• 23:53
  Speaker 3: All right, Eddie, you're on the line with Tom Payton.
• 23:55
  Speaker 3: Go ahead. Good morning, Eddie.
• 23:56
  Speaker 4: Hey, Tom.
• 23:58
  Speaker 5: How are you this morning?
• 23:58
  Speaker 1: I'm great.
• 23:59
  Speaker 2: How are you doing?
• 24:00
  Speaker 3: I'm doing good.
• 24:01
  Speaker 5: Man, I have a question about my mom's estate. I'm
• 24:04
  Speaker 5: already on a joint checking account with her. And then
• 24:09
  Speaker 5: she's in a nursing home and I don't look for
• 24:12
  Speaker 5: her to get out. And what do I need to
• 24:15
  Speaker 5: do to close out her estate? She's 82 years old
• 24:20
  Speaker 5: and I don't look for her to make it out
• 24:22
  Speaker 5: of there. And do I need to get a will
• 24:25
  Speaker 5: drawn up or you said there was a form I
• 24:28
  Speaker 5: need to fill out or?
• 24:29
  Speaker 2: Well, so first we'll start with the easy one. So
• 24:32
  Speaker 2: you said you had a bank account. She has a
• 24:34
  Speaker 2: bank account that your name's on it as well. So that, actually,
• 24:39
  Speaker 2: you probably have full access to it right now.
• 24:42
  Speaker 4: But if she passes, then you just carry on. There's
• 24:46
  Speaker 4: no reason to probate for that purpose.
• 24:48
  Speaker 2: Now, whether she needs, first of all, as long as
• 24:51
  Speaker 2: she's competent, she can execute a will. And competency or
• 24:57
  Speaker 2: capacity to do a will is, it's at the moment
• 25:01
  Speaker 2: the will is executed. And we do some, you know,
• 25:04
  Speaker 2: if there's folks that can't get out, we've got to
• 25:07
  Speaker 2: charge a little extra if we're traveling, especially if we've
• 25:09
  Speaker 2: got to bring witnesses and a notary. But we do
• 25:12
  Speaker 2: travel and go to folks sometimes if it's needed just
• 25:18
  Speaker 2: as a service. But she might not necessarily need a will.
• 25:24
  Speaker 2: What I was saying earlier is if she has other,
• 25:27
  Speaker 2: if she's on Medicaid, And Medicaid's funding the long-term nursing
• 25:32
  Speaker 2: home care. She probably doesn't have a whole lot of
• 25:36
  Speaker 2: assets maybe other than a house because, of course, that's
• 25:38
  Speaker 2: a welfare benefit. You can't really own anything other than
• 25:41
  Speaker 2: a house and a car and the things inside your home.
• 25:45
  Speaker 2: But if she's not on Medicaid and still using her
• 25:48
  Speaker 2: own funds or maybe she had long-term care insurance and
• 25:53
  Speaker 2: she has any of the things I listed earlier, life insurance, 401K, annuity,
• 25:59
  Speaker 2: pension with a death benefit, or some kind of stock
• 26:01
  Speaker 2: portfolio plan, those all have, they're all kind of think
• 26:06
  Speaker 2: of them as the same way as life insurance. So
• 26:09
  Speaker 2: if there are forms, what they're called beneficiary forms, you
• 26:13
  Speaker 2: might go through, and I don't know if you've.
• 26:15
  Speaker 4: Got a power of attorney for her.
• 26:16
  Speaker 2: If you have a durable power of attorney, then you
• 26:17
  Speaker 2: would be able to make inquiries of these entities and
• 26:21
  Speaker 2: see who the beneficiaries are. You've got to be careful
• 26:25
  Speaker 2: changing them on their behalf if you know, there's other
• 26:28
  Speaker 2: family members that might have an interest in it. But
• 26:32
  Speaker 2: if she has things like that and they all have
• 26:34
  Speaker 2: beneficiary forms filled out and filed with those companies, then
• 26:38
  Speaker 2: that will all transfer non-probate. There's no reason to probate
• 26:43
  Speaker 2: for that purpose. If she still owns a home, there's
• 26:47
  Speaker 2: a really good tool that we've talked about here a
• 26:49
  Speaker 2: few times called a transfer on death deed. I still
• 26:51
  Speaker 2: call it new, but the legislature authorized it in 2015.
• 26:54
  Speaker 2: And that's a way in which, um, A homeowner can,
• 27:01
  Speaker 2: we draft a deed, it's signed, it's recorded, but it's
• 27:05
  Speaker 2: not a gift during lifetime. The person still owns it
• 27:09
  Speaker 2: that signed the deed up until the moment they pass away.
• 27:11
  Speaker 2: But in essence, it's kind of like a beneficiary form
• 27:15
  Speaker 2: for life insurance, but it's a deed. So the moment
• 27:17
  Speaker 2: she would pass away, for example, if she made you
• 27:19
  Speaker 2: her transfer on death deed beneficiary, you would own it automatic.
• 27:23
  Speaker 2: And then there would be no need to go through
• 27:25
  Speaker 2: probate in order to transfer ownership. So as far as
• 27:32
  Speaker 2: I don't know that you need to do anything any
• 27:35
  Speaker 2: other than kind of check on those items, and it
• 27:39
  Speaker 2: will save you time and money if most of what
• 27:45
  Speaker 2: she has, if not all other than her personal items,
• 27:49
  Speaker 2: are set up that way, then there may be no
• 27:50
  Speaker 2: need to go through the probate process at all. Right.
• 27:55
  Speaker 1: Right.
• 27:56
  Speaker 5: She doesn't own anything. She, um, she's already had, she's
• 27:59
  Speaker 5: on Medicaid.
• 28:00
  Speaker 4: Okay.
• 28:00
  Speaker 5: She's already had, she's already had to turn over all
• 28:03
  Speaker 5: her life insurance policies to the, uh, nursing home or
• 28:08
  Speaker 5: to the funeral home. So she can, she had life insurance.
• 28:12
  Speaker 5: That's all she had.
• 28:13
  Speaker 7: Yeah.
• 28:13
  Speaker 2: So the life, usually when you have those, uh, life
• 28:16
  Speaker 2: insurance policies that are funded in the funeral home, there's
• 28:18
  Speaker 2: been an assignment or a legal document signed that essentially says, uh,
• 28:24
  Speaker 2: the first up kind of beneficiary for the life insurance
• 28:26
  Speaker 2: is the funeral home. Now, oftentimes there's a balance left.
• 28:30
  Speaker 2: So there should be an underlying beneficiary form. Let's say
• 28:34
  Speaker 2: she wanted you to get the money if there's anything left.
• 28:36
  Speaker 2: She's probably completed that at the inception of the policy.
• 28:40
  Speaker 2: And so then you would get whatever's left. But yeah,
• 28:43
  Speaker 2: if she doesn't own a home, you're on her bank account.
• 28:47
  Speaker 2: And the only other, you know, she's got a life
• 28:50
  Speaker 2: insurance policy.
• 28:51
  Speaker 4: But it's already.
• 28:53
  Speaker 2: Going to the funeral home and maybe a balance goes
• 28:55
  Speaker 2: to a named beneficiary, if that's the case when she
• 28:58
  Speaker 2: passes away, then based on what you've told me so far,
• 29:04
  Speaker 2: then there wouldn't be need to probate her estate. And
• 29:08
  Speaker 2: so you won't need to do anything. You'll just carry on.
• 29:10
  Speaker 2: There can't be a whole lot in that bank account probably, right?
• 29:14
  Speaker 2: Just kind of an operations account with recurring expenses. Because
• 29:19
  Speaker 2: I think you can't have As far as cash and
• 29:22
  Speaker 2: be eligible for Medicaid, it adjusts.
• 29:25
  Speaker 1: $ 2, 000.
• 29:26
  Speaker 2: Yeah, I was going to say $ 2, 000. It might adjust
• 29:29
  Speaker 2: a little bit based on cost of living. But yeah,
• 29:31
  Speaker 2: right about $ 2, 000, you can't really have cash and you
• 29:34
  Speaker 2: can't have– you can retain your home. That's a big
• 29:38
  Speaker 2: misnomer altogether. going to come take my home or the
• 29:42
  Speaker 2: nursing home's going to take my home. No, it's, you know, it's,
• 29:46
  Speaker 2: and we get a lot of people concerned about that.
• 29:48
  Speaker 2: I think some of it's speculation, but, you know, nursing
• 29:53
  Speaker 2: home care is just like anything else in America. You
• 29:55
  Speaker 2: pay for it yourself unless you got insurance for it.
• 29:59
  Speaker 2: And right now, uh, and during my entire legal career,
• 30:02
  Speaker 2: the only mechanism to have long-term nursing home care paid
• 30:05
  Speaker 2: for other than paying for it yourself or through long-term
• 30:08
  Speaker 2: care insurance, which almost nobody has is through the Medicaid program,
• 30:12
  Speaker 2: which is a welfare program, which has negative connotations, but
• 30:15
  Speaker 2: that just means anybody's entitled to that benefit through Medicaid,
• 30:19
  Speaker 2: as long as they qualify financially. And if you go
• 30:22
  Speaker 2: and what happens with your home, if you, uh, you
• 30:28
  Speaker 2: basically are allowed to keep your home in almost all
• 30:31
  Speaker 2: circumstances because when they determine whether you're eligible for Medicaid
• 30:35
  Speaker 2: or not, with the exception of, I forget the limit now,
• 30:39
  Speaker 2: really high-value homes, I think it's well over $ 500, 000.
• 30:42
  Speaker 4: Homes, they don't count the value of your home against.
• 30:45
  Speaker 2: You when DTHR is determining whether you're eligible for Medicaid
• 30:50
  Speaker 2: or not. So, you know, that's another thing to think
• 30:54
  Speaker 2: about if somebody does have a home and they're they've
• 30:58
  Speaker 2: got some health problems and you think probably in the
• 31:01
  Speaker 2: future long-term nursing home care is likely. Sometimes you don't
• 31:06
  Speaker 2: want to run out and just sell the home to
• 31:08
  Speaker 2: get the money because that home can be preserved and
• 31:12
  Speaker 2: that person can still be eligible for Medicaid. And if
• 31:15
  Speaker 2: you do like a transfer on death, like I was
• 31:18
  Speaker 2: referencing earlier, it's possible that that home could then be
• 31:21
  Speaker 2: passed down to the heirs. And so it gives the
• 31:24
  Speaker 2: person an opportunity to still pass some things on to
• 31:29
  Speaker 2: their children, for example, even though they've needed to spend
• 31:33
  Speaker 2: most of their other assets if they had any on
• 31:37
  Speaker 2: their care and ultimately get on Medicaid. But, yeah, so that's,
• 31:43
  Speaker 2: of course, not all facilities accept Medicaid. So, you know,
• 31:48
  Speaker 2: it's not really helpful to the person that's the owner.
• 31:52
  Speaker 2: I mean, it's not directly helpful to them to find
• 31:55
  Speaker 2: a way to pass a home down. That's the way
• 31:58
  Speaker 2: it's a way for them to get some, some value
• 32:00
  Speaker 2: to their, to their children or their heirs. Of course,
• 32:04
  Speaker 2: you always have the option or they do, or somebody
• 32:07
  Speaker 2: with a power to sell it and then use the
• 32:08
  Speaker 2: money to pay for maybe a facility that wouldn't otherwise
• 32:14
  Speaker 2: accept Medicaid. So those are all decisions that families have
• 32:18
  Speaker 2: to go through when you get, you know, older relatives
• 32:20
  Speaker 2: or relatives that have kind of chronic illnesses that might
• 32:23
  Speaker 2: lead to nursing home care. But it sounds like you're
• 32:26
  Speaker 2: all set up, Eddie. Like if, if, If she had
• 32:28
  Speaker 2: some life insurance that might pay out and a bank account,
• 32:32
  Speaker 2: you don't need to probate for personal items unless you
• 32:38
  Speaker 2: got something substantial. I mean, if she had something really substantial,
• 32:41
  Speaker 2: a high-end piece of art or jewelry or something like that,
• 32:44
  Speaker 2: it might be different. But normally, folks stuff clothes and
• 32:49
  Speaker 2: personal items, heirlooms, things like that. they most of the
• 32:54
  Speaker 2: time have a lot more value to the family than
• 32:55
  Speaker 2: they really do market value. And of course, there's no
• 32:58
  Speaker 2: title documents to those. So you don't really need to
• 33:02
  Speaker 2: go through the probate process if that's all she really
• 33:06
  Speaker 2: owns when she passes away and everything's all set up
• 33:09
  Speaker 2: based on what you've told me non-probate. So you won't
• 33:12
  Speaker 2: have to deal with it.
• 33:14
  Speaker 5: Oh, that's good to hear. Yeah, I'm trying to get
• 33:17
  Speaker 5: out ahead of this thing. I'm her only son and
• 33:22
  Speaker 5: I talked to her yesterday and she was just worried
• 33:24
  Speaker 5: about just her personal items and stuff is all she has.
• 33:29
  Speaker 5: She doesn't have a home. She doesn't have a car.
• 33:31
  Speaker 5: She doesn't have any of that stuff. So it should
• 33:34
  Speaker 5: be easy to probate her will, right?
• 33:36
  Speaker 2: Yeah, you won't need to probate.
• 33:39
  Speaker 4: So you won't need to.
• 33:41
  Speaker 2: The law is if you have someone's original will that
• 33:44
  Speaker 2: passed away, there is, I mean, I've not ever seen
• 33:48
  Speaker 2: this enforced. It has a criminal element to it too,
• 33:50
  Speaker 2: but it says that the person that's in possession of
• 33:54
  Speaker 2: that original will is supposed to turn it in to
• 33:56
  Speaker 2: the fiduciary supervisor or county commission within 30 days. That
• 34:01
  Speaker 2: doesn't mean you have to admit it to probate. Admitting
• 34:04
  Speaker 2: it to probate means it's accepted and an executor's sworn
• 34:08
  Speaker 2: in to administer the estate, but you can turn in
• 34:11
  Speaker 2: the original to the fiduciary supervisor's office. We'll call it
• 34:15
  Speaker 2: the probate office. Each county has one, and they'll actually,
• 34:19
  Speaker 2: what I call, they'll lodge it. So, I don't know
• 34:22
  Speaker 2: where it is. There's a vault somewhere for each county
• 34:25
  Speaker 2: commission that retains and they keep it. It's the original
• 34:29
  Speaker 2: will and it's lodged, but it's not like activated, I
• 34:33
  Speaker 2: guess you would think of.
• 34:34
  Speaker 4: It's just there. And it's always there.
• 34:36
  Speaker 2: And so, for example, Eddie, if your mom wasn't aware,
• 34:42
  Speaker 2: but she inherited some mineral interest with some value in
• 34:45
  Speaker 2: a different county.
• 34:46
  Speaker 4: See that sometimes.
• 34:47
  Speaker 2: People don't even know that it's coming, but they've inherited
• 34:49
  Speaker 2: it from a relative or something, then you might need
• 34:53
  Speaker 2: to probate that will at that point. If you've taken
• 34:56
  Speaker 2: it to the courthouse after she passes, it's lodged, it's there.
• 34:59
  Speaker 2: If you're the one nominated executor, then you can go
• 35:01
  Speaker 2: have it actually go through the probate process, get appointed,
• 35:05
  Speaker 2: and administer the estate. That way you can get those
• 35:08
  Speaker 2: mental interests transferred properly through the probate process. But yeah,
• 35:12
  Speaker 2: you won't, that's what I'm saying, you won't need to,
• 35:15
  Speaker 2: you won't, absent maybe turning any will, if she has one,
• 35:20
  Speaker 2: you won't need to do anything and obviously you get
• 35:24
  Speaker 2: along with your mother and you're the only child, so
• 35:27
  Speaker 2: there's not a whole lot to do as far as
• 35:29
  Speaker 2: transferring personal items, assuming she wants them all to go
• 35:34
  Speaker 2: to you. There's also a small estate process now. If
• 35:37
  Speaker 2: all a person has is personal property and it's valued,
• 35:39
  Speaker 2: I believe under $ 50, 000, you actually can fill out one
• 35:44
  Speaker 2: form and never have to go back to the courthouse,
• 35:46
  Speaker 2: and you're basically swearing that you'll distribute that small amount
• 35:51
  Speaker 2: of personal property according to the law, and you don't
• 35:55
  Speaker 2: have to go through the probate process.
• 35:57
  Speaker 4: It's a good call, Eddie. Yeah, go ahead.
• 36:02
  Speaker 5: It's just a form I have to go to the
• 36:03
  Speaker 5: county and fill out when she does pass away.
• 36:06
  Speaker 4: Well, maybe.
• 36:07
  Speaker 2: If it's just, I mean, if she's literally just got
• 36:09
  Speaker 2: kind of her keepsakes and things, you probably don't even
• 36:12
  Speaker 2: need to do that. To be honest with you, there
• 36:14
  Speaker 2: wouldn't be a whole lot of purpose in it. But yeah,
• 36:16
  Speaker 2: if she's got You know, personal property is anything other
• 36:20
  Speaker 2: than land. So you're talking about cars, money, that kind
• 36:23
  Speaker 2: of thing. If she has anything substantial there that was
• 36:27
  Speaker 2: owned by her only.
• 36:28
  Speaker 4: Am I out of time?
• 36:28
  Speaker 3: Yep, about out of time.
• 36:29
  Speaker 5: All right.
• 36:30
  Speaker 4: Good call anyway, Eddie.
• 36:31
  Speaker 2: But yeah, if you have more questions when the time comes,
• 36:33
  Speaker 2: just pop us an email or give us a call, Eddie,
• 36:35
  Speaker 2: and we'll straighten you out. But I guess my emphasis is,
• 36:38
  Speaker 2: you know, don't just run down to the courthouse, open
• 36:40
  Speaker 2: the estate, and get appointed. If there's some question about
• 36:43
  Speaker 2: whether the person that passed away actually.
• 36:45
  Speaker 4: Has any Anything that needs to go through for it.
• 36:47
  Speaker 2: Give us a call first. We can screen a lot
• 36:49
  Speaker 2: of those out and save you time. We don't charge
• 36:51
  Speaker 2: for this type of conversation.
• 36:52
  Speaker 3: That's great stuff, as always, from the Payton Law Firm.
• 36:54
  Speaker 3: That's Tom Payton from the Payton Law Firm. If you
• 36:57
  Speaker 3: have any questions, you can follow up online. It's PaytonLawFirm.com, P-E-Y-T-O-N, PaytonLawFirm.com.
• 37:01
  Speaker 3: In Nitro, West Virginia, 304-755-5556.
• 37:07
  Speaker 4: 304-755-5556.
• 37:07
  Speaker 3: One more time, 304-755-5556. Every Thursday right here, Ask the Lawyer,
• 37:11
  Speaker 3: 580 WCHS, The Voice of Charleston. I'll see you back
• 37:14
  Speaker 3: here at 306 this afternoon. Tom, have a good day.
• 37:16
  Speaker 3: See you next week. You too, Coop. You're listening to
• 37:18
  Speaker 3: 580 WCHS. We are your voice of Charleston.
• 37:21
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• 37:24
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• 37:30
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