Latest / Ask the Lawyer / 09/10/2026 Ask the Lawyer with Tom Peyton

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09/10/2026 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 1: We're mass communicating. Breaking rocks in a hot sun.
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Speaker 3: Up on the low heaven, the low one.
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Speaker 4: It is 22 minutes past the hour. You're listening to
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Speaker 4: 580 WCHS, The Voice of Charleston.
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Speaker 1: I'm Dale Cooper. Thanks for tuning in on this Thursday.
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Speaker 1: That Thursday means it is time you can put the
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Speaker 1: law on your side.
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Speaker 4: You don't have to fight the law. The law is
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Speaker 4: on your side with the Payton Law Firm. And joining
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Speaker 4: us in studio this morning, it is Tom Payton from
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Speaker 4: the Payton Law Firm. Good morning, Tom.
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Speaker 1: How are you doing this morning?
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Speaker 5: I'm doing great. How are you doing, Coop?
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Speaker 1: Doing very well. Kind of nice to see you overcast, Scott,
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Speaker 1: a little bit this morning.
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Speaker 6: A little rain. Be careful.
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Speaker 5: Getting into that drought stage there a little bit.
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Speaker 3: Yeah.
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Speaker 2: Just be careful out there. Traffic's a little backed up
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Speaker 2: this morning, naturally, with the rain. I come from Taze Valley.
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Speaker 2: It took me 20 minutes just to get onto the interstate,
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Speaker 2: but that's the way it goes.
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Speaker 5: Yeah, good week.
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Speaker 2: Falling up on our predictions for the Mountaineers last week.
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Speaker 2: Of course, I'm 1-0 now. Dad's 0-1 because.
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Speaker 1: He He's probably glad for that. He's probably glad to
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Speaker 1: take that loss.
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Speaker 5: I'm sure he is, yeah. I don't know why he
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Speaker 5: was so pessimistic about that game.
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Speaker 4: If the fourth quarter was 20 minutes instead of 15,
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Speaker 4: I'm not so sure.
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Speaker 1: It might have changed, yeah.
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Speaker 2: Well, I think we just got a little complacent in
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Speaker 2: the second half and looked pretty good in the first half.
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Speaker 2: So this should be a pretty easy victory this week.
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Speaker 2: And then I think we play Virginia and Charlotte, and
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Speaker 2: they bumped up into the top 25. So that'll be
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Speaker 2: a nice tester for the Mountaineers. But, yeah, things are
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Speaker 2: rolling at the Peyton Law Firm. If we get any
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Speaker 2: If anybody has a question or a comment, feel free
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Speaker 2: to give us a call or send a text in.
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Speaker 2: If you need to speak with us at the office,
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Speaker 2: of course, there's multiple ways in which you can communicate
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Speaker 2: with us. You can call us at the office at 304-755-5556.
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Speaker 2: You can, of course, stop by. We're at 2801 First Avenue.
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Speaker 2: First Avenue is the main drag through Nitro, just a
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Speaker 2: few minutes off the interstate. It's hard to just pop
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Speaker 2: in and have one of the lawyers available, but We
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Speaker 2: have competent staff that's there from 8 to 5 every day.
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Speaker 2: Or you can go through our website and send an email.
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Speaker 2: And I pretty much answer emails through the website every day.
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Speaker 2: And that's an excellent way to get some basic information.
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Speaker 2: Initial calls, email correspondence back and forth. One, oftentimes that'll
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Speaker 2: solve the folks' problems. They just need some information and
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Speaker 2: some guidance real quick. Two, we don't ever charge for
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Speaker 2: that type of communication. and kind of our bread and butter,
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Speaker 2: even though we do a lot of things to help
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Speaker 2: everyday people, deeds, wills, social security, disability, um, do a
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Speaker 2: little bit of criminal defense. Um, you know, most of
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Speaker 2: the time we're handling injury cases, whether you've been injured
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Speaker 2: physically or financially, and we universally handle all those on
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Speaker 2: contingency fees. So if we take the case, you don't
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Speaker 2: pay us unless we, uh, get a, uh, a positive result.
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Speaker 2: And then it's just a percentage of, uh, of the recovery.
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Speaker 2: So you shouldn't hesitate to reach out. It's, uh, You know,
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Speaker 2: if you don't want to fight the law and you
3:22
Speaker 2: don't want to be doing something legal and be in
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Speaker 2: a realm you don't understand when you could just spend
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Speaker 2: a few minutes getting some information and at least give
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Speaker 2: you a sense of comfortability.
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Speaker 4: I haven't asked you about this in a while, but
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Speaker 4: in your experience and all these decades that you and
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Speaker 4: Harvey have been practicing, for the things that you guys do,
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Speaker 4: what's like the one, maybe not the one, but one
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Speaker 4: of the common areas that people maybe don't get legal
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Speaker 4: advice where maybe it, it just makes the most sense. Like, man,
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Speaker 4: if you just knew that this would help you so much,
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Speaker 4: if you would get legal advice.
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Speaker 2: So the thing that unfortunately everybody has to deal with,
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Speaker 2: or most people have to deal with at some point
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Speaker 2: in their own lives is the death of a relative. And, um,
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Speaker 2: not always, but most of the time it requires going
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Speaker 2: through the probate process in West Virginia, which actually is
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Speaker 2: quite simple compared to most of the other States I've
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Speaker 2: dealt with. Um, But that's easy for me to say,
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Speaker 2: having practiced law for 25 years. So it can be
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Speaker 2: an overwhelming process. One, you're often in a grieving process
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Speaker 2: when you need to get that work done. And two,
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Speaker 2: it's not something that most people have any experience doing.
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Speaker 2: So they're in a realm that they don't understand. And so,
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Speaker 2: you know, I find folks, one, they jump the gun
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Speaker 2: and go get probate when maybe they didn't need to.
4:49
Speaker 2: mostly they rely upon the staff at the courthouse, like
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Speaker 2: in the fiduciary supervisor's office, which I think are competent,
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Speaker 2: but they're in a difficult position because they're not lawyers
4:59
Speaker 2: and they can't give legal advice. And so, you know,
5:02
Speaker 2: there's a kind of a fine line between information and
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Speaker 2: legal advice. You want to need to help people fill
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Speaker 2: out the forms and things, but they're not really supposed
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Speaker 2: to be given legal advice. And sometimes I think that
5:11
Speaker 2: that line is blurry and I will have folks come
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Speaker 2: in an awful lot who've tried to go through the
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Speaker 2: process themselves or gone through the process themselves and unfortunately
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Speaker 2: not done it correctly or got some bad information. And
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Speaker 2: so it's, it's sort of, I mean, you don't want
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Speaker 2: to spend money that's unnecessarily, but if you're handling an
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Speaker 2: estate that has any amount of money in it or,
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Speaker 2: or property that is significant that you care about, I
5:41
Speaker 2: don't know what, you know, initially other law firms charge,
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Speaker 2: but we, we generally, if I'd, look at it and
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Speaker 2: think this is a pretty simple estate for me to handle.
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Speaker 2: Unless it becomes more complicated later, we have a pretty
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Speaker 2: reasonable kind of flat fee that we charge. And in
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Speaker 2: that way, we're there to answer all the questions, fill
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Speaker 2: out the forms and do that kind of thing.
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Speaker 5: And I, I guess it frustrates me a bit.
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Speaker 2: And, you know, probably would be advisable for the, for
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Speaker 2: the staff at the fiduciary supervisor's office. If they think
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Speaker 2: they're getting questions that, might be near that line of
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Speaker 2: legal advice just to say, we need to go hire
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Speaker 2: a lawyer. I mean, there's plenty of lawyers out there
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Speaker 2: and steer people that way. I think that that happens
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Speaker 2: sometimes probably could happen a little more often. Sometimes I
6:23
Speaker 2: can just answer a few questions and get folks on the,
6:26
Speaker 2: on the right track. But, you know, to me, if
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Speaker 2: I hadn't practiced law for 25 years and, you know,
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Speaker 2: had a family member pass away and I'm the one
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Speaker 2: that's got to go through the probate process, having no
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Speaker 2: clue what I'm doing. Um, and if there's, some cash
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Speaker 2: in the estate or significant property, I feel like I
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Speaker 2: wouldn't hesitate to go ahead and retain counsel just to
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Speaker 2: help me.
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Speaker 5: I might do it right. And you might do it right.
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Speaker 2: And maybe you probably will, but if you do it wrong,
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Speaker 2: it's going to cost more money and it's going to
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Speaker 2: be problems in the end. And you got title issues
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Speaker 2: with land that need to be done correctly. I'm in
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Speaker 2: the process right now where I've been hired to go
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Speaker 2: back and redo two different estates because they weren't done correctly.
7:08
Speaker 2: And it's created a title problem that was only discovered
7:12
Speaker 2: When we did a title search in anticipation of a
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Speaker 2: closing and we had to tell the buyer, well, here
7:16
Speaker 2: you got this technical issue out here that, you know,
7:20
Speaker 2: you probably can't borrow money against this until it gets corrected.
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Speaker 2: So then the sellers have had to hire us and
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Speaker 2: pay significantly more than they would have had to pay.
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Speaker 2: We just done it from the beginning, but they did
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Speaker 2: it themselves without counsel. So I guess that's a long
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Speaker 2: answer to your question, but that's, it's just something. I mean,
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Speaker 2: you have folks in car wrecks that try to do
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Speaker 2: it themselves. It's really complicated. I mean, you should never
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Speaker 2: really do that if you have any kind of significant injury.
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Speaker 2: But not everybody's in a car wreck, thankfully. But a
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Speaker 2: lot of people, especially as we get older, are going
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Speaker 2: to have to deal with going through the probate process.
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Speaker 2: And if you want competent advice and somebody you can
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Speaker 2: call or email and get prompt responses as you go
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Speaker 2: through the process, just retain counsel to get it done.
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Speaker 5: And we have a pretty.
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Speaker 2: I size up what I think the estate administration process
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Speaker 2: will be like, and we just have a very reasonable
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Speaker 2: fee to get that done. Hey, we've got a call
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Speaker 2: coming in.
8:15
Speaker 4: I think we have a phone call that's coming in. Caller,
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Speaker 4: we put you right on the air and get your name.
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Speaker 4: So what's your first name? Do you have a question
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Speaker 4: for Tom this morning?
8:20
Speaker 7: Yeah, James here.
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Speaker 4: Hey, James.
8:22
Speaker 1: How are you doing this morning?
8:23
Speaker 7: I'm doing okay. Yes, sir. I have a question. I
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Speaker 7: made out my will about a year ago, but there's
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Speaker 7: a paragraph in there that I need to change.
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Speaker 2: Mm-hmm.
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Speaker 7: And it's where I had given some property away to someone,
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Speaker 7: and I want to change that and give it to
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Speaker 7: someone else. Can I just blank out that paragraph and
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Speaker 7: add a page to the back of the will explaining that,
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Speaker 7: or do I have to make a whole new will?
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Speaker 2: Well, the answer is no, you can't do that, most likely,
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Speaker 2: and I wouldn't advise it. Two, well, if we do
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Speaker 2: folks estate planning, and even if it's 10 years ago,
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Speaker 2: probably back to like 20 years ago, we always retain
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Speaker 2: the core documents in Microsoft Word format, Word processor format.
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Speaker 5: So if I have clients.
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Speaker 2: That want to make a change like that, I just
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Speaker 2: do a whole new will because normally they just call me,
9:27
Speaker 2: tell me what they want to change, and then I
9:29
Speaker 2: have them come in for one appointment where we have
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Speaker 2: the witnesses, etc., And it doesn't take me a lot
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Speaker 2: of time just to make that modification in the will.
9:36
Speaker 2: There might be an updated address or something like that,
9:38
Speaker 2: but it's simple. So they normally don't get the same
9:43
Speaker 2: fee charge that they would have gotten if we started
9:45
Speaker 2: from scratch. So that's another reason to go to us
9:49
Speaker 2: or a lawyer to have it done. Now, you can
9:51
Speaker 2: do what's called a codicil to a will, which is
9:53
Speaker 2: in essence an amendment. But I haven't done one of those.
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Speaker 2: There's some limited circumstances in which I've do them. Normally,
10:01
Speaker 2: I just draft a whole new will because there's other
10:03
Speaker 2: things that need to be changed. And a codicil, actually,
10:07
Speaker 2: for me, takes more lawyer time because you've got to
10:09
Speaker 2: have the old will. You've got to back reference the
10:12
Speaker 2: paragraph that's coming out or the section and clearly state
10:15
Speaker 2: that this replaces it. You also have to go through
10:18
Speaker 2: the same formalities as the original will signature. So you're
10:21
Speaker 2: going to have to have two witnesses over 18 present
10:26
Speaker 2: to watch what they call the testator, the person whose
10:28
Speaker 2: will it is, sign the will. So it's easier for
10:32
Speaker 2: me just to do a new will. Now, you start
10:35
Speaker 2: talking about maybe doing your own, I guess, but a
10:39
Speaker 2: notary isn't even required for a will. People think, well,
10:43
Speaker 2: I got this notarized document. Well, that's not what's A notary,
10:49
Speaker 2: like we have on our wills, is only because we
10:52
Speaker 2: have what's called a self-proving affidavit attached to it. So
10:55
Speaker 2: that is an affidavit actually not signed by the testator,
11:00
Speaker 2: the person whose will it is. It's signed by the
11:03
Speaker 2: two witnesses under oath, saying that they are over 18,
11:07
Speaker 2: they believe the person was of sound mind, and they
11:09
Speaker 2: actually witnessed the signature. And when you have that, When
11:13
Speaker 2: the will is admitted to probate, you don't need to
11:15
Speaker 2: bring the witnesses down or a witness down to the
11:18
Speaker 2: courthouse to verify. You have that self-proving affidavit. And if
11:23
Speaker 2: you have a typewritten will, you go and mark things
11:28
Speaker 2: out in your handwriting or delete them, it's probably not
11:30
Speaker 2: going to work.
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Speaker 5: Certainly wouldn't advise it. It's dangerous to do that.
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Speaker 2: Property-wise, it probably will not work. And you can't just
11:39
Speaker 2: pull a page out and then initial it or something.
11:41
Speaker 2: You have to go through the formalities of, of, uh,
11:46
Speaker 2: will execution to get it done correctly. And I, I know,
11:50
Speaker 2: of course, what I run in today all the time
11:52
Speaker 2: is AI lawyering. And I can tell real quick when
11:55
Speaker 2: you get a, not, not necessarily lawyers are using it
11:58
Speaker 2: and it can be a useful tool as a start.
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Speaker 2: I don't use it because I've, I've just been practicing
12:04
Speaker 2: so long. I mean, I have done so many things.
12:07
Speaker 2: I normally don't need to use AI to get a
12:08
Speaker 2: start on a document. I've got already know how to
12:10
Speaker 2: do it, but, non-lawyers are using AI and playing lawyer.
12:15
Speaker 2: And it's real dangerous because when I read it, some
12:18
Speaker 2: of it's pretty good, but some of it's wrong. And if,
12:22
Speaker 2: even if some of it's wrong, it could get you
12:24
Speaker 2: in big trouble. So you gotta, you gotta watch that.
12:27
Speaker 2: And then, you know, these doing forms and things off
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Speaker 2: the internet or wherever, you know, these form companies that
12:36
Speaker 2: don't actually have lawyers that are licensed in the state,
12:38
Speaker 2: you gotta watch those because if you do the blanks correctly,
12:41
Speaker 2: you might, It probably would be a will, but not
12:47
Speaker 2: understanding the practicalities of how the language you use will
12:50
Speaker 2: play out in real life can create messes. And I
12:54
Speaker 2: do a decent amount of estate litigation, and I would
12:56
Speaker 2: wager that 75% to 80% of it is where folks
13:00
Speaker 2: have done their own legal work, and it's just created
13:06
Speaker 2: a mess afterward for their family members.
13:09
Speaker 5: Or their heirs.
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Speaker 2: And that's kind of the point of doing a will
13:11
Speaker 2: is not just to get done what you want, but
13:13
Speaker 2: to hopefully make it a little bit easier on your
13:14
Speaker 2: family when you, when you have an issue, um, or
13:18
Speaker 2: when you pass away. Uh, so it's a tough time
13:21
Speaker 2: for them. You want to make it easy as possible,
13:23
Speaker 2: not get them embroiled in litigation because you didn't spend
13:25
Speaker 2: maybe a few hundred dollars, uh, extra to have a,
13:30
Speaker 2: you know, a lawyer draft your documents. You also got
13:33
Speaker 2: to be I've seen some of this out there and
13:35
Speaker 2: the state bar has a position dedicated to unauthorized practice
13:38
Speaker 2: of law. So you, I mean, it's not illegal to
13:41
Speaker 2: draft your own legal documents if they're for you, but
13:44
Speaker 2: you can't, you're not to draft them for other people.
13:48
Speaker 2: That's practice of law and it's prohibited. Actually, it's a
13:53
Speaker 2: criminal statute. You don't think it's prosecuted very often unless
13:57
Speaker 2: somebody puts up shop and starts, you know, I've seen notaries,
14:00
Speaker 2: you know, kind of, play lawyer and draft documents for people.
14:03
Speaker 2: And that's a big no-no. So you can get in
14:06
Speaker 2: trouble there. So I hope that answers your question. I
14:09
Speaker 2: wouldn't advise doing what you kind of suggested. It probably
14:12
Speaker 2: won't work and probably will create a mess. If you
14:14
Speaker 2: need basic estate planning done, just give us a call.
14:16
Speaker 2: At least we'll quote you a general price. And you'd
14:19
Speaker 2: be surprised it's not, you know, usually too taxing financially.
14:26
Speaker 8: Okay.
14:27
Speaker 7: Thank you.
14:27
Speaker 4: Appreciate that. Thank you very much for calling in. Appreciate that, James.
14:30
Speaker 4: We now have another caller that's called in this morning.
14:32
Speaker 4: We're going straight to the air caller. What's your first name?
14:35
Speaker 3: Hello.
14:35
Speaker 9: My name is Jennifer.
14:36
Speaker 1: Hey there, Jennifer. How you doing?
14:38
Speaker 3: Yes.
14:39
Speaker 9: Jennifer in tornado, as you know, me, how you doing Jennifer? Yeah.
14:43
Speaker 9: I just wanted to reiterate what Tom said about having
14:47
Speaker 9: your documents, um, up to date and to get good advice. Um,
14:55
Speaker 9: and I've talked to Tom about this before. Um, When
15:00
Speaker 9: my parents had a will done many decades ago, it
15:03
Speaker 9: was a joint will, which now I understand is not
15:06
Speaker 9: done because it's just not a good idea. It takes
15:10
Speaker 9: both parties to change the will, and when one person
15:12
Speaker 9: is incapacitated or deceased, well, maybe not deceased, but incapacitated,
15:18
Speaker 9: it's impossible for the other person to change the will.
15:22
Speaker 9: The second thing was a hard lesson learned for me
15:25
Speaker 9: was that When my father died, who was the remaining one,
15:29
Speaker 9: and I took the will to the courthouse in Greenborough
15:31
Speaker 9: County for disposition, the fiduciary supervisor said that my sister
15:40
Speaker 9: and I were the sole heirs because of a phrase
15:44
Speaker 9: that said to share and share alike. And I was
15:49
Speaker 9: stunned because my brother, who was deceased, had two boys.
15:54
Speaker 9: And we assumed that they would inherit my brother's third.
15:59
Speaker 9: I came home and Googled it. Here again, don't depend
16:02
Speaker 9: on Google. And sure enough, that's exactly what Google told me. Well,
16:07
Speaker 9: I didn't consult an attorney. It was only a year
16:10
Speaker 9: later when we were ready to sell the house and
16:13
Speaker 9: settle the estate that I found out through the attorney
16:18
Speaker 9: who was handling the sale of the house in Lewisburg
16:21
Speaker 9: called in one of my my nephew's addresses and phone
16:26
Speaker 9: numbers because they inherited part of the property. That caused
16:31
Speaker 9: a huge rift in our family, which exists to this day.
16:37
Speaker 9: It was awful and still is terrible. It was a misunderstanding.
16:42
Speaker 9: And ever since then, I have never hesitated to contact
16:46
Speaker 9: an attorney when I think I have a need for one.
16:50
Speaker 5: Yeah, it's good information.
16:51
Speaker 2: And share and share alike is kind of, classic line
16:55
Speaker 2: it's sort of legal ease in a will it doesn't
16:57
Speaker 2: really have significance as to um you know how how
17:02
Speaker 2: things pass if one of the heirs has pre-deceased the
17:05
Speaker 2: testator the person whose will it is and i've had
17:08
Speaker 2: that i've been told that the quote courthouse gave that
17:13
Speaker 2: information to people uh more than one time in my
17:15
Speaker 2: career and it's yeah it's wrong there's a uh normally
17:19
Speaker 2: the will will um I always try and go at
17:22
Speaker 2: least one or two layers down. So if you have
17:23
Speaker 2: one of your primary beneficiaries pass away, your will explains
17:27
Speaker 2: who gets it very clearly if that situation occurs. And
17:33
Speaker 2: people don't think about that a lot because they always
17:34
Speaker 2: think everything's going to go in order. You know, I'm
17:37
Speaker 2: not going to pass away before my kids.
17:40
Speaker 9: Yeah, that was not in my parents' will. It did
17:43
Speaker 9: specifically name the three children by name. But then my
17:49
Speaker 9: brother was deceased. And like I said, I was just stunned.
17:55
Speaker 2: And if there's no language, if there's no life, sorry,
17:57
Speaker 2: let me interject. If there's no language that addresses that,
18:00
Speaker 2: then it falls over to the there's an anti-lapse statute
18:02
Speaker 2: in West Virginia so that that gift doesn't lapse. It
18:04
Speaker 2: passes to my representation in essence to his one third
18:09
Speaker 2: share would be distributed between his descendants, his kids, basically.
18:16
Speaker 3: Yeah.
18:17
Speaker 9: Well, this happened on a Friday morning, and it's really
18:22
Speaker 9: hard to reach attorneys on Fridays. In fact, I tried
18:27
Speaker 9: to reach you all, Tom, and then I reached out
18:31
Speaker 9: to another member of the church who he and his
18:34
Speaker 9: wife are attorneys, but he told me that they're divorce attorneys,
18:38
Speaker 9: and I really can't answer this question for you, and
18:41
Speaker 9: he referred me to a firm in Charleston in who
18:46
Speaker 9: I was able to get an appointment with first thing
18:48
Speaker 9: Monday morning. And she sat there across the table and
18:53
Speaker 9: listened to my story, and she was nodding her head.
18:55
Speaker 9: And she said, there's case law in West Virginia that
18:59
Speaker 9: is different from that. And she pulled that out for
19:03
Speaker 9: me to take with me because West Virginia has case
19:06
Speaker 9: law that says otherwise. That's not the case.
19:08
Speaker 10: Right.
19:09
Speaker 9: So there were hard feelings. And I got along fine
19:13
Speaker 9: with everybody. But, boy, my sister is not on good
19:15
Speaker 9: terms with my nephews.
19:18
Speaker 5: Yeah, that's too bad.
19:19
Speaker 2: Well, there's just, you know, I could rattle off a
19:21
Speaker 2: dozen stories like that where situations. So you're not alone there.
19:26
Speaker 2: But lesson learned, right? So you can call us or
19:29
Speaker 2: contact us anytime you want. And email is excellent. We
19:33
Speaker 2: work on Fridays.
19:34
Speaker 5: That's right. But this is some time.
19:37
Speaker 3: Ago, I'm sure.
19:38
Speaker 9: For some reason that Friday, I couldn't reach anyone. It
19:43
Speaker 9: was hard and I was under stress.
19:46
Speaker 5: Appreciate the call, Jennifer. I think we need to take
19:49
Speaker 5: a break.
19:50
Speaker 1: Yeah, yeah, we'll go and take a break. Jennifer, I
19:51
Speaker 1: appreciate your call, and we'll talk to you later. All right,
19:53
Speaker 1: take care.
19:54
Speaker 5: Have a good day.
19:55
Speaker 4: That was Jennifer from Tornado calling in, a regular listener
19:58
Speaker 4: to the program. You're more than welcome to take that
19:59
Speaker 4: phone line. We have a phone line open now, 304-345-5858, 345-5858.
20:03
Speaker 4: Tom Payton is here from the Payton Law Firm online, paytonlawfirm.com.
20:07
Speaker 4: We'll take a break and be back right after this.
20:09
Speaker 4: You're listening to Ask the Lawyer on 580 WCHS, the
20:12
Speaker 4: voice of Charleston.
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21:14
Speaker 6: 17 minutes now to the top of the hour.
21:27
Speaker 1: You're listening to The Voice of Charles and 580 WCHS.
21:30
Speaker 1: I'm Dale Cooper.
21:31
Speaker 4: Tom Payton is in studio with us this morning from
21:32
Speaker 4: the Payton Law Firm online, PaytonLawFirm.com.
21:35
Speaker 1: PaytonLawFirm.com. We have Pat that's on the line now. He
21:37
Speaker 1: has a question for Tom. Pat, good morning. How are
21:39
Speaker 1: you doing?
21:41
Speaker 3: Good morning.
21:41
Speaker 5: Good morning, Pat.
21:42
Speaker 3: Yes, sir. I've got a will that refers to a
21:47
Speaker 3: trust that sets up the trust. that refers to a
21:51
Speaker 3: family trust, but what is in the mechanics after a
21:55
Speaker 3: person dies that that trust is set up?
21:59
Speaker 2: Yeah, so you have a couple things there, and that's
22:01
Speaker 2: the other question I get. People call me and say,
22:04
Speaker 2: we need a trust, and you ask them why, and
22:06
Speaker 2: they don't really have any reason other than they've Googled
22:08
Speaker 2: it or somebody's told them they need one. And generally,
22:10
Speaker 2: for the average West Virginian, they're not necessary unless you
22:13
Speaker 2: have a particular situation that would call for it or
22:16
Speaker 2: some significant concern. But There are things, what I call
22:20
Speaker 2: a pour-over will. I mean, you can have a living
22:23
Speaker 2: trust that was created while you were alive or a
22:25
Speaker 2: family member created it. And then your will essentially has,
22:29
Speaker 2: it might distribute some personal items, but otherwise it just
22:32
Speaker 2: says everything I have, wherever it is, I give to
22:35
Speaker 2: the Pat family trust, for example. And that's a pour-over will,
22:40
Speaker 2: meaning all the assets that would go through probate just
22:43
Speaker 2: pour over into the trust. And then the trust has
22:45
Speaker 2: language in it. that distributes the property or manages it.
22:50
Speaker 2: But so if you're talking about a testamentary trust, that's
22:54
Speaker 2: a trust that isn't created by a person's living, but
22:58
Speaker 2: it's created by the will, then it's just a matter
23:03
Speaker 2: of you get, normally you get a, depending on the
23:06
Speaker 2: type of trust, but normally you get a tax ID
23:08
Speaker 2: number for the trust, and then it's the own separate
23:11
Speaker 2: legal entity, and then the language of the will has
23:14
Speaker 2: parameters for the trust. We do them fairly common in wills.
23:20
Speaker 2: Like if someone has a young child or grandchild that's
23:23
Speaker 2: going to be an heir and there's a potential that
23:25
Speaker 2: they'll inherit, you know, while they're still a minor, then
23:28
Speaker 2: we'll sometimes do trusts in that regard because then you
23:31
Speaker 2: can control who the trustee is that controls the money
23:33
Speaker 2: for them until they reach whatever age you deem appropriate
23:35
Speaker 2: versus 18, which is an adult for owning property in
23:38
Speaker 2: West Virginia. But that's the mechanics on a testamentary trust. Now,
23:42
Speaker 2: if you have a living trust, whatever lawyer did it,
23:44
Speaker 2: which probably wasn't our office because we just frankly, they
23:49
Speaker 2: oftentimes have unwound a lot of them and they create
23:51
Speaker 2: more messes than they're worth to do. But if you
23:54
Speaker 2: have a living trust, then it should be established. And
23:58
Speaker 2: then if there's real property that goes by the will
24:01
Speaker 2: into the trust, then you have to, well, in essence,
24:06
Speaker 2: the trust that's created, I mean, it gets a little
24:10
Speaker 2: in the weeds here, but something's got to be recorded
24:12
Speaker 2: showing the terms of the trust, caught a memorandum of trust,
24:15
Speaker 2: and then that's recorded where deeds are and things like that.
24:18
Speaker 2: But if it's a testamentary trust, it's really as simple
24:21
Speaker 2: as reading the will, creating a tax ID number, normally
24:26
Speaker 2: a basic bank account, and then if there's significant assets,
24:30
Speaker 2: you probably want to consult a financial advisor on how
24:32
Speaker 2: to invest them because you need to invest them in
24:34
Speaker 2: a way that benefits the beneficiary if you're a trustee.
24:37
Speaker 2: But the trustee would normally be in charge of taking
24:40
Speaker 2: care of that. Trustee is just the property manager of
24:43
Speaker 2: the trust, which has to go by the language of
24:46
Speaker 2: the will. So Um, it's kind of, other than giving
24:50
Speaker 2: that general information, Pat, it's hard to kind of walk
24:52
Speaker 2: you through it because it just depends on the particular
24:54
Speaker 2: language in the trust and, and what kind of trust
24:57
Speaker 2: it is. Some problems I run into, I mean, folks
24:59
Speaker 2: create these trusts, they get, you know, sold on a
25:02
Speaker 2: trust somehow and do it, and then they don't transfer
25:04
Speaker 2: assets into the name of the trust, or then they
25:06
Speaker 2: can't find their trust document, but the will is referring
25:09
Speaker 2: to it. And, and a lot of that, you certainly
25:13
Speaker 2: don't need to do a trust in West Virginia just
25:15
Speaker 2: for the point of avoiding probate, in my opinion. If
25:18
Speaker 2: you got a disabled beneficiary or if you're talking about
25:23
Speaker 2: having income or estate tax issues, then you probably want
25:26
Speaker 2: to get some trust work done. But, you know, I
25:28
Speaker 2: think we're talking, you got to have over $ 15 million
25:30
Speaker 2: worth of assets, uh, before you have to really start
25:35
Speaker 2: paying lawyers to do complicated legal work in that regard. But, um,
25:39
Speaker 2: I don't know if that helps you out a little bit, Pat,
25:41
Speaker 2: but yeah, to give, give any real specific advice, I
25:43
Speaker 2: would have to probably to have a consultation on, uh,
25:47
Speaker 2: exactly what kind of trust it is and that kind
25:48
Speaker 2: of thing.
25:50
Speaker 3: So the executor of the will would set up that
25:53
Speaker 3: trust after the person's death?
25:56
Speaker 5: Not necessarily.
25:58
Speaker 2: Sometimes the executor is the— so if I do a testamentary
26:01
Speaker 2: trust in a will, of course there's an executor, and
26:04
Speaker 2: then within the will there's also a trustee for the trust,
26:07
Speaker 2: or maybe more than one. So the trustee would be
26:10
Speaker 2: in charge, which sometimes they're the same people, the executor
26:13
Speaker 2: and the trustee, and they can be. but the trustee
26:17
Speaker 2: would create the trust, like go get the tax ID number,
26:20
Speaker 2: open the account. The executor is in charge of preserving
26:24
Speaker 2: and protecting the assets and ultimately distributing them once creditors
26:27
Speaker 2: are taken care of. And so then let's say there's
26:30
Speaker 2: a hundred grand there and 50 grand is designated to
26:32
Speaker 2: go in the trust. The executor would write a check
26:35
Speaker 2: when the state's ready to close for 50 grand made
26:37
Speaker 2: payable to the trustee of the Pat family trust, for example,
26:41
Speaker 2: and then they deposit it and take it from there.
26:44
Speaker 2: So it's not, necessarily the executor's responsibility to establish the trust.
26:49
Speaker 2: Somebody needs to do it, normally the trustee.
26:53
Speaker 3: Very good.
26:53
Speaker 5: Thank you. You're welcome.
26:54
Speaker 1: Appreciate it, Pat. Thanks for calling in. Leave the phone
26:56
Speaker 1: line open for you.
26:57
Speaker 4: If you want to give us a call this morning,
26:58
Speaker 4: you can do that at 304-345-5858. 304-345-5858 is a number
27:02
Speaker 4: that you can call to get online with Tom Payton
27:04
Speaker 4: from the Payton Law Firm. For a few minutes, we're
27:06
Speaker 4: remaining on the air here this morning. Got about 10
27:07
Speaker 4: minutes left. You can get in this morning, 304-345-5858. Yeah,
27:10
Speaker 4: it's a good example. Sometimes folks just kind of need
27:13
Speaker 4: to be led the right direction. you know, the courthouse
27:16
Speaker 4: shouldn't really be giving legal advice on how to do
27:18
Speaker 4: things like that. And, and, um, you know, they want
27:22
Speaker 4: to help people. So I think the urge is to
27:23
Speaker 4: give them information, uh, but just hopefully doesn't cross over
27:28
Speaker 4: into legal advice, but we can usually straighten folks out
27:30
Speaker 4: with quick call. I mean, if I were able to see,
27:33
Speaker 4: he could eat pack an email, the document he's talking about,
27:35
Speaker 4: I could give him information in a few minutes or
27:37
Speaker 4: send him an email.
27:38
Speaker 5: It's no problem.
27:39
Speaker 2: And then if it's more complicated, he can retain us to,
27:41
Speaker 2: to of course help with the, with the process. But, uh,
27:45
Speaker 2: It shifted gears a little bit. So I remember last
27:47
Speaker 2: week I was in, and I think it was the
27:49
Speaker 2: day before, yeah, that Justice Wooten had had.
27:52
Speaker 5: The medical emergency.
27:54
Speaker 2: And I was there to do an oral argument, which
27:56
Speaker 2: we do a decent amount of appellate work, but a
27:58
Speaker 2: lot of them are decided without argument. You don't, and probably,
28:01
Speaker 2: oh gosh, I'd say 90% or 95% of appeals. You
28:05
Speaker 2: don't get to go argue in person. And so, you know,
28:09
Speaker 2: I was all ready to go and got to the court.
28:13
Speaker 2: And unfortunately, Justice Wooten had had to, out of health
28:16
Speaker 2: care uh of course we found out later that night
28:18
Speaker 2: it was sounds like just he'd been ill and maybe
28:20
Speaker 2: a cold or something had some dehydration he's back on
28:22
Speaker 2: the bench i think the next day and he's back
28:25
Speaker 2: back now so i'm going over there this morning they
28:27
Speaker 2: rescheduled my argument right quick for this morning so i
28:29
Speaker 2: get to go argue before the supreme court after i
28:30
Speaker 2: leave here so looking forward to that um so it's
28:35
Speaker 2: not scheduled till 10 40 but it really it's actually
28:37
Speaker 2: a criminal case and uh i had a judge ask
28:40
Speaker 2: if i would do it involves some deputies being hurt
28:43
Speaker 2: down in capitol county i think some of the lawyers
28:45
Speaker 2: down there had conflicts, didn't really want to do it. So, um,
28:49
Speaker 2: actually did it as a, which I rarely do, but
28:52
Speaker 2: I was actually appointed by the court to handle it.
28:54
Speaker 5: And then, uh, yeah.
28:56
Speaker 2: And my client was convicted of one misdemeanor and acquitted
28:59
Speaker 2: of four felonies. Actually two of them, the jurors were hung. Uh,
29:04
Speaker 2: they couldn't decide. They found him not guilty of that
29:07
Speaker 2: or two felonies and then guilty of a misdemeanor. And
29:09
Speaker 2: then ultimately the, the two serious charges where they couldn't
29:12
Speaker 2: decide were all dismissed after the, after the trial rather
29:16
Speaker 2: than subject to retrial. But we got some interesting, it's
29:19
Speaker 2: actually constitutional rights issues about search and seizure and, uh,
29:23
Speaker 2: what the police can do. Um, this involved coming to
29:27
Speaker 2: a home and seizing a gun and manipulating and taking
29:30
Speaker 2: pictures of it without a warrant. So, um, we'll kind
29:33
Speaker 2: of follow that one. I'll argue it today, hopefully. And then, uh,
29:38
Speaker 2: you know, usually they'll render a decision sometime, during this term,
29:40
Speaker 2: probably I expect the next 30 or 45 days. So
29:43
Speaker 2: we'll see how that one comes out, but always look
29:45
Speaker 2: forward to going in front of the, uh, Supreme court.
29:47
Speaker 2: Cause it doesn't happen that often.
29:49
Speaker 4: As a lay person that, uh, really only knows about
29:51
Speaker 4: as much about the law as what, uh, I learned
29:53
Speaker 4: on this program. Um, And I know enough to know
29:57
Speaker 4: that watching TV shows and movies will pretty much ruin
29:59
Speaker 4: you to any reasonable expectation of what the law actually is.
30:03
Speaker 1: It must drop.
30:03
Speaker 4: Maybe it doesn't affect you at all, but it must
30:05
Speaker 4: be make you roll your eyes at least when there's
30:07
Speaker 4: movies or something that presents the.
30:09
Speaker 1: End of a trial. And it's like the verdict right
30:12
Speaker 1: that very second.
30:13
Speaker 4: It's like you argue in front of like the largest
30:15
Speaker 4: court in the land and the judge is like, OK,
30:17
Speaker 4: it's dismissed.
30:17
Speaker 1: This is what I decided.
30:18
Speaker 4: And it's like everybody celebrates and kisses the baby in
30:21
Speaker 4: the movies over. And it's like, that's not how things. Well,
30:23
Speaker 4: there's a lot of aspects of legal.
30:25
Speaker 8: I just.
30:25
Speaker 5: You have to suspend your disbelief and I can't really
30:28
Speaker 5: do that.
30:29
Speaker 2: So very well as a lawyer. So I can't watch
30:31
Speaker 2: like law and order or the Lincoln lawyer. That was,
30:34
Speaker 2: I imagine it's got to be very difficult. I just,
30:36
Speaker 2: I get a few minutes into it and I just
30:38
Speaker 2: find myself playing lawyer and, and I just can't, although
30:42
Speaker 2: I tell you there's on some movies and shows, I'm
30:44
Speaker 2: quite impressed by these actors, closing arguments and opening statements.
30:47
Speaker 5: They're pretty good, actually.
30:48
Speaker 1: Not too bad.
30:49
Speaker 2: They're smooth and they, uh, make sense. So, uh, Yeah,
30:54
Speaker 2: but no, I just, and then you go back and
30:55
Speaker 2: you had the old show Cops and then there's a
30:57
Speaker 2: couple other ones on and just, I find those kind
31:00
Speaker 2: of interesting because, you know, it's real and I think
31:04
Speaker 2: they stopped doing the cop show because it was maybe
31:07
Speaker 2: influencing how law enforcement behaved during the process. But I
31:12
Speaker 2: watched some of those, but I still find myself, I'm
31:15
Speaker 2: watching it for the purpose of critiquing it about whether
31:18
Speaker 2: this person had their rights violated or not.
31:20
Speaker 5: And basically, I mean, People would be surprised.
31:24
Speaker 2: I mean, I watched those cop shows and think, well,
31:26
Speaker 2: that's not going to get anywhere because that's illegal. They
31:29
Speaker 2: didn't read the Miranda rights after he was in custody.
31:31
Speaker 2: And now he's admitted something and it's not going to
31:33
Speaker 2: be able to be used or they didn't have probable
31:35
Speaker 2: cause to search that car or.
31:39
Speaker 5: In a search.
31:40
Speaker 2: It can be very minimal. There's no just because a
31:44
Speaker 2: search is cursory, meaning just a little bit like picking
31:47
Speaker 2: up a gun and turning it over, for example. Well,
31:49
Speaker 2: that's a search if you don't have permission or you
31:51
Speaker 2: don't have a warrant. And so you'd be surprised when
31:54
Speaker 2: you get into it. That's kind of what my case
31:58
Speaker 2: is about. So we'll see how it how it comes down.
32:00
Speaker 2: And then actually, after that, I'm going down to a
32:02
Speaker 2: couple of hearings in Putnam County today. And one of
32:04
Speaker 2: them is a unfortunately have a client who's got mental illness.
32:08
Speaker 2: So we've got to have a hearing about whether he
32:12
Speaker 2: is he's competent. And this Lindsay Clancy case has been
32:16
Speaker 2: all over the news lately. Unfortunately, it's where she. And sadly,
32:20
Speaker 2: she strangled her three young children. And then I think
32:23
Speaker 2: it was the same day she maybe tried to harm her,
32:26
Speaker 2: cut herself maybe. But more importantly, she jumped out of
32:29
Speaker 2: a second story window. And now she's a paraplegic. But
32:31
Speaker 2: we had a I got to trial. It went multiple weeks.
32:35
Speaker 2: And the real issue was, I mean, she did. There
32:38
Speaker 2: was no question about that. It's just whether she was,
32:40
Speaker 2: we'll say, criminally insane. And that was the case. Is
32:44
Speaker 2: she not guilty by reason of insanity or is she guilty?
32:47
Speaker 8: I can't.
32:49
Speaker 2: I mean, I'm looking at it from a satellite view
32:50
Speaker 2: and just reading headlines, but it seems like kind of
32:52
Speaker 2: a classic case of the insanity defense. You have to
32:58
Speaker 2: have a mental disease or defect, first of all. Can't
33:00
Speaker 2: be voluntary intoxication or something doesn't give you a defense for,
33:05
Speaker 2: you know, not guilty by reason of insanity. But she
33:11
Speaker 2: had a postpartum, it was something, psychosis, I think is
33:14
Speaker 2: what they call it.
33:15
Speaker 5: Yeah, right, right.
33:16
Speaker 2: Yeah, and, you know, it seems that she was living
33:21
Speaker 2: a fairly normal life, although struggling to raise three young
33:24
Speaker 2: kids without a whole lot of mental health help, as
33:27
Speaker 2: I understand, and then just went completely off the wall.
33:30
Speaker 2: And the standard is, did that, one, did she have
33:34
Speaker 2: a mental disease or defect, like a real one, diagnosed?
33:36
Speaker 2: And then two, did that prevent her and her mind
33:40
Speaker 2: from knowing right from wrong? It seems like it. It
33:44
Speaker 2: seems like they had pretty good evidence, especially when you
33:45
Speaker 2: get somebody who uh, commit significant self-harm right afterward. I mean,
33:50
Speaker 2: she's in a wheelchair, she's confined to a wheelchair or
33:52
Speaker 2: power chair now as a paraplegic because she jumped out
33:55
Speaker 2: of a second story window. And I guess the jury
33:57
Speaker 2: deliberated for a number of days, uh, wrote back to
34:01
Speaker 2: the judge multiple times they were deadlocked and couldn't decide.
34:04
Speaker 2: The judge kept pushing them, which is not unusual. We
34:07
Speaker 2: have something in Western New York called the Allen charge.
34:08
Speaker 2: So if the jury comes back and say they're deadlocked,
34:10
Speaker 2: the judge will send them back and say, well, it's basically, uh,
34:13
Speaker 2: keep trying and try harder. Um, And that happened two
34:16
Speaker 2: or three times while they were deliberating. And it came
34:19
Speaker 2: out through some of the communications with the court that
34:22
Speaker 2: there's basically one juror that's holding out. And you could
34:24
Speaker 2: see by it, they don't expressly say who's on which side,
34:27
Speaker 2: but you could tell, you could infer from the communications.
34:30
Speaker 1: And the holdout is from an acquittal, right? Not from
34:32
Speaker 1: a conviction, but from an acquittal.
34:34
Speaker 5: Yeah, well, there was a holdout.
34:36
Speaker 2: They don't say the count, like who's guilty, who's not guilty,
34:39
Speaker 2: but you could infer from the communications that the one
34:42
Speaker 2: holdout would not go along with the other 11 jurors
34:46
Speaker 2: who thought there was reasonable doubt and that she should
34:50
Speaker 2: be found not guilty by reason of insanity.
34:53
Speaker 5: And then that juror.
34:55
Speaker 2: Was stubborn and never, never relented and ended up being
34:58
Speaker 2: a hung jury. So now the, and normally you can
35:01
Speaker 2: retry those, the prosecutor will have to make a choice.
35:03
Speaker 2: Do they want to retry it or not? Unless there's
35:06
Speaker 2: prosecutorial misconduct, that's really bad. Sometimes they'll bar them from
35:09
Speaker 2: retrying it, which didn't happen here. So, They'll have to
35:12
Speaker 2: decide whether to retrial the case or not. But some
35:14
Speaker 2: of the jurors have now done interviews, which they're free
35:16
Speaker 2: to do if they want after the trial is concluded,
35:18
Speaker 2: and claiming that one juror said that he actually had
35:23
Speaker 2: reasonable doubt, but he still wasn't going to, which means
35:26
Speaker 2: not following the law if he had reasonable doubt. Now,
35:30
Speaker 2: what context that was set in and whether he agrees
35:34
Speaker 2: that he said that or not, I don't know. But really, deliberations,
35:38
Speaker 2: even when jurors talk about or after the trial would happen.
35:41
Speaker 5: You really can't.
35:43
Speaker 2: The defendant's not going to go back into that deliberation
35:46
Speaker 2: room and claim deliberations were incorrect. It's generally prohibited, but
35:50
Speaker 2: it sounds like that juror wasn't really following the law.
35:53
Speaker 2: If they thought there was a reasonable doubt, of course
35:55
Speaker 2: the government always has the burden to prove the elements
35:58
Speaker 2: of a crime beyond a reasonable doubt in a criminal case. Um,
36:02
Speaker 2: cause it's not ever money and property, it's Liberty or
36:05
Speaker 2: life sometimes depending on the potential sentence. And if she
36:09
Speaker 2: was found guilty by reason of, uh, mental illness, basically,
36:14
Speaker 2: then it doesn't mean she would go scot-free.
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Speaker 5: She would be housed.
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Speaker 2: I think they can confine someone for treatment.
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Speaker 5: As long as the sentence could be for the underlying cause.
36:27
Speaker 5: It could have been for the rest of her life.
36:29
Speaker 2: Although, if the professionals agree at some point that she's
36:33
Speaker 2: not a risk or a danger to herself or others
36:35
Speaker 2: and she's recovered, then eventually she could be released one day.
36:39
Speaker 5: So we'll see how that one falls out. Hey, about time.
36:42
Speaker 4: Yep, that's great information from Tom Payton from the Payton
36:44
Speaker 4: Law Firm, kind of wrapping up the show talking about
36:46
Speaker 4: that Clancy case.
36:48
Speaker 1: And what that means.
36:49
Speaker 4: But all kinds of great information from our callers today.
36:51
Speaker 4: Thank you so much for calling in. We really appreciate that.
36:54
Speaker 4: You can find the Peyton Law Firm online. It's PeytonLawFirm.com.
36:56
Speaker 1: PeytonLawFirm.com.
36:57
Speaker 10: P-E-Y-T-O-N.
36:57
Speaker 1: PeytonLawFirm.com.
36:58
Speaker 9: 304-755-5556.
36:58
Speaker 11: 304-755-5556.
36:58
Speaker 1: They work on Fridays, like Tom said.
36:59
Speaker 11: 304-755-5556.
37:00
Speaker 1: Put the power of Peyton on your side if you
37:01
Speaker 1: have any questions at all. Saturdays and Sundays. There you go.
37:03
Speaker 1: That's right. Tom, thanks so much for coming in. We'll
37:05
Speaker 1: see you next week. Sounds good. Take care, everyone, listening
37:16
Speaker 1: to your voice of Charleston, 580 WCHS. 580 WCHS AM, 96.5
37:23
Speaker 1: FM Charleston, 104.5 Cross Lane on WVRC Media Station.