The Law Office of Dallas Lain

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Welcome to The Law Office of Dallas Lain

March 25th, 2009 by Dallas Lain
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Thank you for visiting The Law Office of Dallas Lain.  My law practice offers services for  busy people in Wyoming and Colorado.

For busy families and entrepreneurs, I provide legal support and guidance that helps you achieve your family or business goals.  As your lawyer, I will act as your trusted adviser, whether it be with respect to your family’s estate planning decisions or the organization and operation of your business. Some of the services I offer include:

For Busy Families

  • Wills and Trusts
  • Probate and Estate Administration
  • Durable Powers of Attorney
  • Health Care Power of Attorney
  • Pre-nuptial and Co-habitation Agreements

For Busy Entrepreneurs

  • Formation of Corporations, Partnerships, and Limited Liability Companies
  • Contracts–Drafting and Negotiation
  • Real Estate–Sales and Leases

Call me at 307-214-4450 or email dallas(dot)lain(at)bresnan(dot)net to discuss how I can help you.

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Legal Writing: Vocabulary lesson from the Supreme Court

January 12th, 2010 by Dallas Lain
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This is the first post about legal writing to this blog. If the goal of the athlete’s workout is “Bigger, Faster, Stronger” then the corollary ”Quickly, Clearly, Concisely” applies to the legal writer practicing her craft. This series of posts examines the characteristics of good legal writing and other stories of interest to the craft of writing.

The Supreme Court heard oral argument in the case Briscoe v. Virginia yesterday. Counsel for the Petitioner was arguing whether the State must produce a lab tech for cross-examination by the defendant in criminal cases where lab results are introduced into evidence  The lawyer’s use of the word orthogonal caused a bit of a stir among the Justices:

MR. FRIEDMAN: [...] I think that issue is entirely orthogonal to the issue here because the Commonwealth is acknowledging -
CHIEF JUSTICE ROBERTS: I’m sorry. Entirely what?
MR. FRIEDMAN: Orthogonal. Right angle. Unrelated. Irrelevant.
CHIEF JUSTICE ROBERTS: Oh.
JUSTICE SCALIA: What was that adjective? liked that.
MR. FRIEDMAN: Orthogonal.
CHIEF JUSTICE ROBERTS: Orthogonal.
MR. FRIEDMAN: Right, right.
JUSTICE SCALIA: Orthogonal, ooh.
(Laughter.)
JUSTICE KENNEDY: I knew this case presented us a problem.
(Laughter.)
MR. FRIEDMAN: I should have — I probably should have said -
JUSTICE SCALIA: I think we should use that in the opinion.
(Laughter.)
MR. FRIEDMAN: I thought — I thought I had seen it before.
JUSTICE SCALIA: Or the dissent.
(Laughter.)
MR. FRIEDMAN: That is a bit of professorship creeping in, I suppose.
In this oral argument in front of the United States Supreme Court, using this word resulted in a complete interruption of the point the lawyer was trying to make. When written, the word doesn’t stand out as much, because the strategy of the reader unfamiliar with the word is to keep reading and glean the meaning from context.  But, before using an uncommon word like this in our writing, we should ask ourselves whether we want risk diverting the reader’s attention from our legal argument toward the rabbit-trail of contemplating the word’s definition.
I think Mr. Friedman would say the answer to that question is no.

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Wyoming Estate Planning Basics: How do you make a valid will?

January 11th, 2010 by Dallas Lain
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So, we’ve established that you cannot leave your property to your heirs by videotape, and that a handwritten will is probably not a good idea either. What then, do you need to make sure your will is accepted as valid under Wyoming law?

The Wyoming Statutes set it out pretty simply. According to the statutes, a will must be

  • in writing,
  • witnessed by two competent witnesses, and
  • signed by the testator.

One small technicality: the two witnesses cannot be people who receive anything under the will. If a beneficiary (person who receives something in the will) also witnesses the will, that person will not be allowed to take his or her bequest (gift made by a will).

In other words, this is something you don’t want to mess up when you are signing your will. For this reason, your lawyer will tell you not to have one of your grown children or another beneficiary of the will act as your witness; instead, you might ask a close friend to be a witness. Alternatively, your lawyer may ask her secretary or legal assistant to be a witness to the will. Your lawyer will also have the signatures of your witnesses, as well as your signature, notarized. If all the signatures to the will are properly notarized, it creates a presumption that the will was properly signed, and the will is valid.

And then, you’ve done it. You’ve created a valid will that expresses your wishes and protects your family and your assets. Don’t you feel better already?

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Wyoming Estate Planning Basics: Can you use a handwritten will?

January 8th, 2010 by Dallas Lain
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I hope that I’ve convinced you that you need a will so that your wishes for your property and your loved ones will be carried out. Now let’s talk about what kind of a will you need.

A single person with few assets might think that a handwritten will is all he needs to see that his wishes are carried out. And, in Wyoming, a handwritten will (also called a holographic will) can be recognized by the courts as a valid will. However, it will be valid only if two conditions set out in the Wyoming Statutes are met:

  • The will must be entirely in the handwriting of the testator, and
  • The will must be signed by the hand of the testator himself.

Sounds pretty easy, but you should know that the Wyoming courts are incredibly strict about interpreting this statute. One handwritten will that had notes written on it by the decedent’s  banker, was found to be invalid because of the banker’s notes. In other words, the will wasn’t entirely in the handwriting of the decedent. So, even though the decedent most likely wished the changes by the banker to be a part of the document, her entire handwritten will was thrown out, leaving her an intestate decedent and her estate to be distributed by the rules of the Wyoming Statutes.

On a related note, Wyoming courts also rejected a “will” that the decedent made on videotape and put in an envelope with instructions for the tape to be played upon his death. The watching of a video will makes for a good scene in the movies, but don’t let a screenwriter’s vision of estate planning influence you, because a video will is completely invalid under Wyoming law, which requires a will to be in writing or typewritten.

So, if you’ve decided that rules for distributing your property under the Wyoming Statutes aren’t in line with your wishes, you need to make a will, and you need to make it correctly. Don’t rely on a videotape, handwritten directions, or any other communication except a valid will.

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Much Ado About the Federal Estate Tax

January 7th, 2010 by Dallas Lain
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If you’ve been paying attention to anything Congress has been doing in the past month other than cutting deals with Sen. Ben Nelson (D-Neb.), you may have heard that our national representatives had too much on their plates to bother addressing legislation that affects the federal estate tax as of January 1, 2010. The most talked about aspect is the fact that for the year 2010, the federal estate tax is completely repealed.  However, the aspect of this legislation that will probably affect the most people is the fact that as of January 1, the tax rule which gives heirs a “step-up” basis in property they inherit is eliminated. What does this mean? Well, last year (in fact, just last month), if your father died and left you his house that he paid $10,000 for in 1955, but is worth $200,000 in 2009, you are considered to have been given an asset worth $200,000. If you then sell the house for $205,000, you must pay capital gains tax of only $5,000 on the sale. Not anymore though. With the change effective January 1, 2010, your basis in the house is what your father paid for it in 1955–$10,000. That means that if you sell the house for $205,000, you must pay capital gains tax on $195,000 instead of $5,000. And as you can probably guess, your total tax bill from this event is going to increase.

Here is a link to a good article at CBS Moneywatch, discussing what’s going on with the federal estate tax in 2010. At the end of the article, the author suggests giving your estate plan a check-up. Two of her suggestions that I heartily endorse are that you:

  • Make sure you have a durable power of attorney, and
  • Review beneficiary designation forms on your life insurance policies and retirement accounts.

You should do these two tasks regardless of whether the 2010 changes in tax law will affect you. Taking these two practical steps will protect you from headaches, regardless of the size of your estate.

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Wyoming Estate Planning Basics: What happens if you die without a will?

January 7th, 2010 by Dallas Lain
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What happens if you die without a will? First, let’s clear up some terminology lawyers and estate planners use:

  • If you die intestate, that means you died without a will. A person who dies intestate will be called the decedent.
  • If you die testate, that means you had a will. Someone who dies with a will is usually referred to as the testator.

So, if you die intestate, is it any different from dying testate? If you are young and single, or a married person with a young family, it might  not seem like there would be much of a difference between the two. But, this is not the case. If you die intestate, your money and other property will be distributed in accordance with the Wyoming Statutes. This distribution may or may not be what you wish.

  • You might want to leave a donation to your church or other charitable or non-profit organization. The Wyoming Statutes don’t provide for that.
  • If you have children, you might want to have some money or property available to your children only when they reach, shall we say a more mature age than 18 years. The Wyoming Statutes don’t provide for that.
  • If you have no children, you might want one of your siblings to have a particular piece of property, maybe a car, a motorcycle, some tools, or a piece of jewelry. The Wyoming Statutes don’t provide for that.

In short, the Wyoming Statues more than likely do not provide for your wishes. Only you can do that, by putting your wishes into your will.

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You Need a Plan–Durable Power of Attorney

September 27th, 2009 by Dallas Lain
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Who would be you if you couldn’t?

For many of your roles, it’s easy to answer that question. If you couldn’t pick up your kids from school, your spouse, family member, or neighbor would step in. If you couldn’t go to work, your boss would either hire someone else, or ask your co-workers to take over your projects until you return.

But who would pay your bills? Who would renew your property insurance covering your house and automobiles? Who would sign on your behalf if your illness made it necessary for your spouse to sell your house?

These questions are all answered by a durable power of attorney. This document is different from the power of attorney for health care that we talked about in earlier posts. A durable power of attorney gives your designated agent authority to conduct your personal and business affairs. In other words, it allows them to spend your money after your death or incapacity.

It’s uncomfortable to think about losing control of your finances. Especially if you have significant amounts of assets. You should choose someone you trust completely, and you should communicate your choice to the rest of your family members so that everyone is on the same page. But you should have a durable power of attorney, so that if you are unable to take care of your affairs, someone can step in and help.

My husband and I handled our durable power of attorney documents the same way we handled the power of attorney for health care. We named each other as our agent to act on our behalf if we die or become incapacitated. We then named each of our moms as a back-up.

If one of us dies or becomes incapacitated, we now have a plan for handling our household and business affairs. A tragic event would be devastating enough; our durable power of attorney documents ensure that uncertainty about who should make decisions won’t add to that devastation. Take some time to figure out who you trust to be you when you can’t. Then, let me help you put your wishes into writing, so that you can have the peace of mind that comes from having a plan.

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You Need a Plan-Especially You

September 25th, 2009 by Dallas Lain
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In my last post, we talked about who would make medical decisions for you if you don’t have a written power of attorney for health care. The Wyoming statute suggests that health care providers look first to your spouse, then a grown child, then your parents, and so on. This statutory scheme happens to coincide with my personal wishes–that my husband make these decisions, and if he is not available then my mother (since I have no grown children, my parents would be next under the statute as well).

The statute would work just fine for me. But what if you are in a committed relationship, but not legally married? There is no provision in the statute for your partner to have any decision making authority at all. If that is your case, you need a power of attorney for health care even more than a person whose wishes would most likely be aligned what the statute suggests.

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You Need a Plan–Advance Health Care Directive

September 24th, 2009 by Dallas Lain
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You’ve probably heard of a Living Will. Or maybe a Medical Power of Attorney. Maybe even a Health Care Proxy. Each of these documents can speak for you if you are not able to speak for yourself, such as if you’ve suffered a sudden illness or injury. And all of these documents fall under the category of an Advance Health Care Directive. In other words, “Advance Health Care Directive” is just a fancy way of saying that you’ve written down your wishes about how you want medical decisions to be made if you are unable to make them.

Living Wills were the first of these kinds of documents to be developed. A living will states which life-sustaining mechanisms you do or do not want to receive. Living wills are useful for expressing what your wishes would be in the hypothetical situations included in the document, but sometimes fall short of leaving clear instructions when unexpected medical situations arise.

The solution to the short comings of a living will is to authorize, in writing, a trusted family member or friend to make medical decisions for you. Under Wyoming statutory, law, you can name a decision maker in a document called a power of attorney for health care. You can also put specific instructions in your power of attorney for health care. So, you could name your spouse to make medical decisions for you if you are incapacitated, but also direct that you do or do not want to receive certain procedures.

I look at a power of attorney for health care as sort of a safety net. It is effective only if you are truly unable to communicate  or make decisions for yourself. Under Wyoming law, it may be revoked verbally, and even if it is not revoked, your verbal instructions regarding your medical treatment are to be followed.

One more point, and then I’ll tell you how my husband and I handled this issue. If you do not have a power of attorney for health care, and you do not (or are unable) to instruct the physicians of your wishes, Wyoming law “suggests” (which means this is what doctors and hospital administrators will follow in order to avoid being sued) that decision making authority be given to reasonably available family members, in this order:

  • the patient’ spouse (unless legally separated)
  • an adult child
  • a parent
  • an adult sibling
  • an adult grandchild

This seems logical and workable, until you get past the first suggestion of the patient’s spouse. What if there are two reasonably available adult children? What if they disagree about the course of action? Yikes, things just got complicated.

My husband and I each have a power of attorney for health care. We first name each other as our authorized decision maker, then each of us named our respective mothers, in the case we are both unable to communicate. We did not include specific instructions about treatments we would or would not want, instead trusting in each other and our moms to do what is right in the unlikely (oh please, God, let it be unlikely) event that these decisions need to be made.

Who would you like to make medical decisions for you if you cannot? What do you feel strongly about in terms of medical treatments? Answer these questions, discuss your wishes with your family, and most importantly, put your directions in writing. I can help you with the last step, please take the time to do the first steps.

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You Need A Plan

September 21st, 2009 by Dallas Lain
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Do you have an estate plan? No? Why not?

Is it because you’re waiting until you actually accumulate an estate to plan for? For many years, my husband and I felt that to be our case. We were counting on going through with Plan A–living long enough to provide for ourselves and our children out of the earnings from our work. But, around the time our fourth son was born, we realized that even if we didn’t have much to think about in terms of where money would go, we needed a plan for the things that are thousands of times more important. Such as …

  • Who would make tough medical decisions if we couldn’t?
  • Who would take care of our finances if we couldn’t?
  • Who would take care of our kids?
  • What resources would that person have to take care of our kids?

And suddenly, the need for a plan, let’s call it Plan B, became obvious to us.

In my next post, find out what our Plan B looks like and why it makes sense for us. And please use the comments to ask questions you have about estate planning. Thanks for being part of the conversation.

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