Handling Traffic Tickets in Missouri 24 Aug 2024, 1:51 pm

Traffic tickets can be frustrating to get and paying associated fines can be a significant financial hit.

However, they are not something that should be ignored, however painful; ignoring a ticket does not make it go away and often makes the situation worse, risking issuance of warrants, enhanced penalties and license points, and possible license suspension. Continuing to ignore citations can make resolving those issues significantly more difficult.

Missouri License Points System

In Missouri (and across the country), the state tracks “points” assessed against your license for various offenses. 2 or 3 points for speeding, 2-4 points for reckless driving, 4 points for driving without insurance and so on. See the Missouri Department of Revenue’s website for a more complete list of potential points offenses.

Accumulating points is grounds for an insurance company to raise your insurance premiums, itself a painful consequence of an otherwise relatively minor citation. More seriously, accumulating too many points will also lead to the suspension of your license, or possibly the revocation of your license entirely. 8 or more points in 18 months will result in a 30-90 day suspension, but 12 points in a year is all it takes to have your license revoked for a year, with increasing revocation periods for increasing amounts of points over time.

As few as 3 speeding ticket convictions, assuming no other charges, is all it may take to be suspended. Once points are assessed, they remain on your record for up to 3 years, leaving you with increased premiums for that period and a heightened risk of more significant consequences. Not all citations come with points – non-moving violations typically carry only financial penalties, not points, which is an important component of how an attorney may be able to assist you with your citations.

Traffic Court, Warrants, and Fines

Once a citation is issued, it will typically have an assigned court date or provide notice that a date will be mailed to your address of record – this is important if your address is out of date, as your non-receipt of the notice due to an out-of-date address is not necessarily protection should you miss a court date. If you have a court date, it is important to attend, or if you cannot then to secure a continued court date (courts may or may not be willing to continue a hearing without an attorney requesting a continuance). Failure to attend will, eventually, lead to a warrant being issued for your arrest related to the citation, meaning a future, even mundane interaction with law enforcement may lead to your being detained and brought to the Court. Often citations will provide a mechanism to admit guilt and pay the fine online without attending court. While convenient and perfectly legitimate, if the offense is points-bearing, this means you will assume the points. Working with an attorney may provide a way to both avoid court and any points on the ticket – but probably not avoid a fine; while circumstances may make it possible to get certain tickets dismissed, this is by and large not a realistic outcome for most tickets legitimately issued.

Prosecutor Recommended Sentencing

Missouri provides mechanisms for an attorney to discuss with the local prosecutor and potentially obtain a recommended sentencing, reducing moving violations to non-moving violations, instead paying an increased fine. Often, this can avoid the need to attend court at all, avoid any points being assessed against your license, and quickly resolve citations all at once. More serious offenses may require more significant concessions to avoid more serious punishments, or a repeat offender may find courts unwilling to entertain recommended sentences at all, especially from young drivers. Recalling Warrants If you already have a warrant issued due to an outstanding ticket, an attorney may be able to seek to have the warrant recalled, and at the same time seek a reduction to a non-moving violation. It is always a bad idea to ignore warrants once issued – it is not necessarily too late to resolve the citation in a favorable manner. Resolving citations favorable does become more difficult the longer it is outstanding and the more unaddressed citations there are. Waiting will not make tickets or warrants go away, while prompt action through an attorney may mitigate the harm to your pocketbook and license.

Understanding Missouri Intestacy 10 Jun 2024, 9:02 pm

Intestacy means, simply, the state of dying without a will. The majority of people ultimately die intestate, without a will or other estate plan in place, often leaving heirs unclear as to how their loved one’s assets are meant to be distributed.

Similarly, it is common for estate planning practitioners to be contacted by clients who believe they need a will, but may not understand or may misunderstand why. Frequently we hear from new clients that they “want to get a will in place to avoid probate” or “to ensure their wife and children receive their fair share”. 

If these are the only reasons a client is seeking estate planning (and this is a big if, whether they realize it or not), a will by itself may not accomplish anything different from the intestacy statutes of their state – for purposes of our offices, the intestacy statute of Missouri, which sets forth the general, or default, rules of descent for those that die without a will. Different states have different statutes, some of which lead to slightly different outcomes, but the objective of the statute is the same everywhere: it attempts to predict who an ordinary person would want to inherit their assets, to avoid confusion or the need for a will that calls for the exact same distribution the statute does.

The Intestacy Statute

In Missouri, Section 474.010 of the Missouri Revised Statutes controls most questions of intestate inheritance. It calls for distribution as follows:

For a married person without surviving children or descendants, all goes to the spouse.

For a married person with children or descendants all belonging to their spouse, the spouse takes the first $20,000.00 and half of the remainder, with the rest being split equally among the children (or along their lineal lines, if predeceased).

For a married person with children or descendants not all of which belong to their spouse, the spouse takes half of the estate, with the rest being split equally among the children (or along their lineal lines, if predeceased).

For an unmarried person, the entire estate is split equally among the children (or along their lineal lines, if predeceased).

For a person without a spouse or children or descendants, their surviving parents and siblings take in equal shares.

In the event someone is not survived by a spouse, children or children’s descendants, nor their parents and siblings, more remote heirs begin to take: first grandparents, then aunts and uncles, then cousins second or third cousins up to a certain degree of removal.

Finally, if no heirs exist to inherit, the estate escheats to the state of Missouri – an exceedingly rare event given the breadth of potential heirs that are eligible to inherit first.

Estate Planning May Still be Important

If your intended heirs, likely your spouse and then children, are the same as what the intestacy statute calls for, failure to create a will is unlikely to change the ultimate distribution of your assets, and should be easy for your heirs to identify when probating your estate. However, this does not mean it is always prudent to rely on intestacy – there are numerous potential reasons to procure a will and potentially a trust and other documents, even if your intended distribution matches intestacy

Avoiding Probate

Depending on the size of your estate, it may still be worth engaging in estate planning with the goal of avoiding probate, whether through a trust or other types of non-probate transfers, especially if your estate is likely to be over the small estate limit of $40,000.00. While Missouri probate is far from the most painful state probate processes, it is still a process that will take 6 months to a year (or longer), incur various court and legal fees (roughly 4-5% of the estate value is a reasonable minimum estimate), and require substantial effort on the part of your personal representative (sometimes known as an executor in other states). Neither intestacy nor a will by itself will avoid the need for probate.

Naming Personal Representatives and Guardians

The key functions of a will for any estate plan, even a plan that matches intestate distributions, is the nomination of your personal representative and potential guardians for any minor children. Nominating a particular person to serve as your personal representative may avoid any uncertainty or disputes about who should fill the role when the time comes – which may be particularly important if you do not believe your heirs will be able to agree, or if one or more heirs should not, in your opinion, be trusted with the responsibility. If the will indicates as much, it may also avoid the need for court supervision during the probate process, which will likely expedite the process and reduce legal costs of administration. 

For minor children, nominating guardians in a will may have a similar effect of making it clear who you believe should take on the role and providing your nominees with evidence of your support for serving as guardian. While appointment of guardians is not automatic even if a will nominates them, it can help ensure your nominees are ultimately appointed to take care of your minor children after death. 

Controlling Time and Manner of Distributions

It is one thing to know you want your spouse and children to inherit your assets, but may be another to believe they should receive their share all at once, dividing assets equally. Heirs may be minors or otherwise too young to handle large financial assets responsibly, or may have debt or benefits related income limitations that might make receiving a large sum outright inconvenient. Similarly, certain heirs may be better served by having specific, but equally valued, assets distributed to one but not another heir (for example, one may wish to keep a piece of real property while another would prefer the cash value; equal distribution of both is likely to result in the real property being sold through partition). 

A will or, preferably, a trust can call for distributions of specific assets at specific intervals or under specific conditions to avoid these issues for your heirs, ensuring they receive what you intend without causing unintended problems for your heirs. 

Preparing for Incapacity

Arranging for distribution of your assets after death is only one objective of estate planning. Another important objective is to help arrange for your own care during your lifetime, whether due to an emergency that leaves you unable to do so on your own, or due to lapses in capacity that come with age. Powers of Attorney and/or a trust written with this intention in mind can ensure a clear line of decision-making authority with respect to your person and assets during you lifetime, and ensure your assets are used for your care and your wishes are honored even when you can no longer actively make such decisions on your own. Neither relying on intestacy nor creating a will accomplishes these objectives by themselves.

The Importance of a Power of Attorney 18 May 2024, 4:32 pm

A component of estate planning we frequently see overlooked by clients is the power of attorney. It may come as a surprise to some, but the practical reality is that having appropriate attorneys-in-fact appointed via a power of attorney (POA) can be just as or even more important than wills and trusts, depending on your financial and family situation. Such documents only become more important as we age and increase in likelihood of lapses in capacity and medical emergency. 

What is a Power of Attorney

Broadly speaking, a power of attorney is a document which, if prepared properly, empowers someone else to make certain decisions on your behalf, particularly when you are unable to do so for some reason. 

In the estate planning context, we typically refer to the durable power of attorney – that, powers that persist (or perhaps initiate) in the event of incapacity, and focus particularly on empower the named person (the attorney-in-fact), to make financial and/or medical decisions on your behalf. 

Relative to other estate planning, preparing POA documents for both medical and financial matters is typically relatively inexpensive, particularly when compared to the value they impart. 

Clarity of Decision-making Power

In the event of sudden or unexpected incapacity (and often in other cases too), loved ones, medical facilities, and financial institutions can be uncertain as to who should be/is allowed to make decisions for you; while one’s spouse or children are the natural choices, matters can be complicated if third parties are uncomfortable acknowledging their authority, or if, for example, children disagree on what course of action to take. 

There is also the question of what happens when a spouse is unavailable, or perhaps similarly incapacitated for any reason – who is the “next of kin” a hospital should look to? Financial institutions are also unlikely to recognize the authority of anyone not specifically empowered to direct financial decisions, whether spouse, child, or otherwise.

A POA enables you to avoid these issues and ambiguities, and naming specific people to make decisions on your behalf can avoid people you would not want to be making decisions for you from ending up with the ability to do so. 

Control Over Decision-making 

It is generally prudent to broadly empower an attorney-in-fact being named in a durable power of attorney; it can be dangerous to need such a person to make a important decision for your benefit, only to find they are unable to do so because they were not given such a power in the document. 

At the same time, if there are decisions, whether medical or financial, that you would not want an attorney-in-fact to make, it is possible to draft the POA to reflect such restrictions. For example, certain kinds of medical care that you do or do not want for any reason, or the right to sell or otherwise dispose of certain assets, like particular parcels of real estate, if it is your desire to ensure they remain in your name for any reason. 

Least Restrictive Means of Handling Incapacitated Persons

In Missouri, whenever someone becomes unable to manage their affairs or make decisions on their own behalf due to persistent unconsciousness or mental illness or impairment, it may become necessary for someone else to be empowered to make those decisions on their behalf. Probate Courts can appoint those that apply for such powers as guardians and/or conservators of such incapacitated persons, or if necessary, appoint a government official, the public administrator, to do so if no one else is willing and able. 

A modern trend in probate courts is to favor the use an POA executed (before incapacity) by an incapacitated person to empower the attorney-in-fact to manage their affairs in the same manner a court-appointed guardian and/or conservator might. If properly prepared, this may avoid the need for yourself and your family to go to court to name a guardian/conservator in the event you are incapacitated. It also allows you to have greater influence on who is making medical and financial decisions for you; while you can name your attorney-in-fact in a POA, the pool of people who might successfully petition for appointment as guardian/conservator may include those you would prefer not to be making such decisions. 

Courts see POAs as the “least restrictive” means of managing incapacitated persons – it requires the least intrusion into an incapacitated person’s affairs by the government and others, is typically the most economically efficient by avoiding the need to go to court and file annual reports, and allows you more advance control over who will have the responsibility of acting for you. 

Limitations of a Power of Attorney

A POA is not a substitute for other kinds of estate planning. Powers granted under a POA terminate upon death – that is, your attorney-in-fact is not empowered to effectuate transfers of assets after death, as a will or trust might. Further, the powers that can be given to an attorney-in0fact under a POA are limited by state law; even if the document states it provides certain powers, if the law does not permit delegation of those rights, that text will be ineffective. While important, these documents do not solve all problems estate planning and elder law may need to resolve.  A poorly drafted POA can be as bad or worse than no POA, potentially failing to accomplish the goals you intended it to and not realizing until it is too late to fix, or accidentally over empowering someone to make decisions you would not have wanted.  Durable POAs are best prepared as part of a wider estate plan, and after consultation with a qualified professional.

“I wish I had called sooner” – Missteps Made Before Bankruptcy 23 Apr 2024, 2:18 am

In our bankruptcy practice, we regularly hear clients express after their case has closed that they regret not having taken steps to discharge their debt sooner. Too often, potential filers wait longer than they need to before deciding they need help, or, in the process of trying to stay afloat, make avoidable financial mistakes that put them in a worse off position than they needed to be before ultimately filing for bankruptcy protection anyway While bankruptcy is not a viable option for every circumstance and some bankruptcy filings are easier on clients than others, there is no risk in contacting qualified debtor’s counsel to find out if bankruptcy is a reasonable choice for you and determine what next steps serve to get you the best outcome post-discharge. Many offices, ours included, do not charge a consultation fee for bankruptcy matters. 

Consider the following avoidable scenarios which are all too common among eventual bankruptcy filers that make decisions without being fully aware of their options.

Scenario 1 – Debt Juggling

Too often, would-be bankruptcy filers spend longer than necessary trying to juggle their debt before seeking help. It is hard to identify the line between managing debt in a difficult time and the point where debts become impossible to reasonably keep balanced, but waiting too long means paying more toward debt that will eventually be discharged and allowing potentially avoidable interest to continue to accrue, living longer under the pressures of such debts than is necessary, and perhaps making a future Chapter 13 more difficult in the process. If you find yourself juggling debt without a clear and certain end in sight, it may be worth calling to assess your situation sooner rather than waiting until the situation becomes unmanageable entirely. 

Scenario 2 – Retirement Loans

Typically, retirement assets are exempt from bankruptcy proceedings – that is, they typically cannot be liquidated to repay creditors and do not factor into a Chapter 13 plan calculation. By converting these assets to categories of assets with smaller exemption limits, you decrease the wealth you can retain when filing for bankruptcy. Further, many retirement assets come with certain tax advantages or come with penalties with used before you reach a certain age. As such, it is rarely prudent to withdraw or borrow against such assets, such as through a 401k loan, to repay other debt or cover regular living expenses, and such a decision certainly should not be made without careful consultation. It is all too common for eventual bankruptcy filers to have withdrawn from or borrowed against such accounts, leaving them with non-dischargeable IRS debts or penalties imposed against their retirement plans – all of which may have been avoidable had they considered bankruptcy sooner. 

Scenario 3 – Preferential Repayment

When you file for bankruptcy, the Court examines whether any one creditor (other than mortgage and car lenders, typically) has been repaid larger sums to the detriment of other creditors. They look particularly hard at repayments to relatives or other associated parties, also known as insiders. If the Court finds that certain creditors have been treated with preference over others, they may seek to claw back the paid funds. Sometimes, would-be-bankruptcy-filers pay creditors preferentially in an effort to help juggle their debts, or to repay their friends and family first by virtue of those relationships. If they then seek bankruptcy protection later, this can impair their ability to file at that point. Understanding who you can safely pay and in what amounts early on is key to keeping options open in the future, and is something easily assessed in consultation with bankruptcy counsel. 

Scenario 4 – Lawsuits, Garnishments, and Liens

Sometimes, people wait to consider bankruptcy even after a creditor has filed a collection lawsuit against them or even begun garnishing their wages. Once creditors begin the collection process through the Court, they begin adding the cost of their collection in legal fees and expenses to the debt owed, and once garnishment has begun it can be hard to continue balancing other debts. Worse, if a creditor prevails in a lawsuit and seeks to attach a lien to any of your property, once that lien is in place it can severely impair an eventual bankruptcy proceeding. Filing for bankruptcy can stop most lawsuits immediately, halt garnishments already in place and prevent new garnishments from taking effect and protect assets from new liens being placed upon them, but only if action is taken timely. 

Conclusions

The above are only a handful of common situations debtors find themselves in when trying to file after attempting self-help without full understanding or proper guidance. If you are struggling to manage debts, even if you do not anticipate filing or wish to file, a free consult with competent counsel can be critical to avoiding missteps that may disadvantage you down the line or leave you without the option of bankruptcy relief that may have otherwise been available.