P&F Stands Against Hate

Pasternak & Fidis Reporter

April 24, 2023

Death and the Automobile

Chances are, you own a motor vehicle. It is less likely that you have spent much time thinking about what happens to that motor vehicle when you die. There are many emotions that come with the death of a loved one, most of which cannot be avoided. Ensuring that your assets transfer easily at your death can ease the administrative part of the grieving process, which may be particularly important for motor vehicles because many households rely on them every day.

If your vehicle is titled in your name alone, then it will be transferred according to your will as part of probate. Probate is the process of administering a will when someone dies and involves the appointment of a personal representative or executor by the court. The appointed person will oversee the payment of debts and the transfer of assets in accordance with the deceased person’s will.

Revocable trusts are a popular tool to avoid probate and some of the anxieties associated with transferring assets at death. Other reasons for a revocable trust include privacy and management of the owner’s assets in the event of diminished capacity. Retitling assets in the name of the trust is a crucial step to ensure the owner’s assets can be managed, invested, and distributed according to the owner’s wishes. However, that does not mean every asset should be titled to a revocable trust. Motor vehicles are a good example.

For one thing, most states require the owner of a motor vehicle to carry automobile insurance; when a motor vehicle is titled in a revocable trust, the insurance company may require that the trust be included on the policy as an insured party. In some cases, this could lead to increased insurance premiums and difficulty securing coverage. Another hurdle may exist for a motor vehicle that is financed; the financing agreement may require the owner to notify the lender of the transfer, and the lender may have the right to deny the transfer. Lastly, even if transferring a motor vehicle to a revocable trust is feasible, the owner may find the process impractical; the numerous steps may not be worth the hassle for an asset that will likely be owned for only a handful of years.

In the rare instance where an owner expects to own a motor vehicle for an extended period, the vehicle is not financed, and the owner is not concerned about updates to the insurance
policy, it may be appropriate to think about the motor vehicle as a collectible, like art, fine wine, or jewelry (the car from Ferris Bueller’s Day Off comes to mind). However, even in that
situation, the owner may still prefer a more convenient alternative for transferring the motor vehicle at death.

In Maryland and Virginia, an owner can designate a Transfer-on-Death (TOD) beneficiary for their motor vehicle. A TOD designation allows the beneficiary to receive title to the vehicle at the owner’s death without going through probate. Only one beneficiary can be designated at a time, and if the beneficiary dies before the owner, the owner will have to designate a new beneficiary. The beneficiary can be changed or updated any number of times.

In addition, Maryland, DC, and Virginia permit an owner of a motor vehicle to title the vehicle with another person as joint tenants with right of survivorship (JTWROS). However, there are pitfalls. For one, a vehicle owned as JTWROS with a spouse may be subject to a dispute about who is entitled to retain the vehicle if the couple goes through a divorce. Titling a
vehicle as JTWROS may also require an update to the insurance policy. These issues, and other potential pitfalls, should be discussed with an estate planning attorney before titling a motor vehicle as JTWROS.

If you do nothing and your motor vehicle is titled in your name alone at your death, probate can be relatively straightforward in some states. For example, Virginia allows a vehicle to be transferred without probate if the owner’s will makes clear who is to receive it and the will does not otherwise need to be admitted to probate; Maryland has a small estate proceeding that simplifies the process for those with relatively low-value assets subject to probate at their death ($50,000, or $100,000 if the spouse is the only recipient of the estate).

Regardless of the type of estate plan you implement, your motor vehicles (cars, trucks, and motorcycles, but also boats, recreational vehicles, and planes) should not be forgotten. A
sound estate plan should contemplate all of your assets. The best approach will be the one that meets your goals and gives you peace of mind.

April 21, 2023

Divorce, Pensions and Avoiding Pitfalls in Dividing Them

A divorcing party may have acquired employer-sponsored retirement benefits during marriage. In most states, retirement benefits earned during marriage are marital property and can be divided at divorce. A court order is required to transfer a share of an employee’s retirement assets to the non-employee spouse. This article focuses on private sector and civilian federal government defined benefit pension plans, those plans that pay a monthly annuity during retirement, the scenarios that can create problems for divorcing spouses, and what to do to avoid these problems.

Seven Scenarios to Watch out for:

  • Employee-Spouse Is Working at Divorce and Retirement Is Far Away. A spouse may be working at the time of divorce and will be eligible for a pension at retirement, but retirement is many… MORE >

  • April 20, 2023

    Jan White Retires

    Jan White retired at the end of 2022 after 50 years of practicing law, 32 of them at Pasternak & Fidis as a family lawyer. In her early years of law practice, she was a trial lawyer at Legal Aid in Durham, NC, and then at Hogan Lovells (then Hogan & Hartson) in DC. She and her husband had moved to DC because of the wealth of legal jobs for them both at a time when law schools had only recently begun to admit substantial numbers of women and there were still questions as to whether women lawyers would be encouraged in their careers.

    When the Carter Administration came into office, she joined the Commerce Department as Assistant to the General Counsel, then Assistant to… MORE >

    July 5, 2022

    Postmarital Agreements in the DMV— Lessons from Recent Cases

    A postmarital agreement is a contract governing property and support rights between spouses who have no immediate intent to divorce; by contrast a separation agreement settles economic issues between spouses who expect to divorce. Some spouses may want to use a postmarital agreement to address property issues during an ongoing marriage. A postmarital agreement may be appropriate when estranged spouses want to attempt a reconciliation but want to know in advance what their economic rights and obligations will be if the reconciliation does not come to pass. A variety of other circumstances may also cause a spouse to seek a postmarital agreement, such as when parties intended to sign a premarital agreement but ran out of time before the wedding.

    Recent cases from the District,… MORE >

    February 17, 2022

    Treatment of Vermont Civil Union as a Marriage for Purposes of Divorce in Maryland

    In 2020, in a case called Sherman v. Rouse, the Maryland Court of Special Appeals had to decide whether a 2003 Vermont civil union, which pre-dated marriage equality, should be treated the same as a marriage for purposes of granting a divorce and related rights, including spousal support and equitable division of property. One aspect of the problem presented to the trial court was that, unless the parties’ legal status could be treated the same as a marriage, the Maryland court would have no authority to dissolve it; and, because the parties were not residents of Vermont, a Vermont court would have no authority to dissolve it either, leaving them in a rather awkward spot. The other aspect of the problem is that, unless the… MORE >

    February 16, 2022

    Custodial Accounts, 529 College Savings Plans and Divorce

    Common options for families to save for their children’s education are through custodial accounts and 529 savings plans. When a couple divorces, the treatment of these resources needs attention. A recent unreported case from the Maryland Court of Special Appeals points this up. This article highlights issues that should be addressed as part of a settlement agreement or, if necessary, in court.

    UGMA and UTMA Custodial Accounts

    There are two types of custodial accounts, UTMA (Uniform Transfers to Minors Act) and UGMA (Uniform Gifts to Minors Act). UTMA accounts have replaced UGMA accounts in most states and the District of Columbia. Each allows for creation of an account for a specific minor child. An UTMA can hold cash, securities, real estate, and other property. Often… MORE >