November 6, 2025 • 39 mins
Host Dale Cooper and Harvey or Tom from the Peyton Law Firm discuss legal issues from listeners and matters affecting local politics.
More info: www.PeytonLawFirm.com
(304) 755-5556
2801 1st Ave, Nitro, WV 25143
The Peyton Law Firm was founded more than 30 years ago by Harvey Peyton, who was joined by his son, Tom Peyton. For more than 50 years, the Peyton team has successfully represented clients in courtrooms throughout WV and southeastern Ohio. The firm is known for its active community involvement and straightforward advice.
More info: www.PeytonLawFirm.com
(304) 755-5556
2801 1st Ave, Nitro, WV 25143
The Peyton Law Firm was founded more than 30 years ago by Harvey Peyton, who was joined by his son, Tom Peyton. For more than 50 years, the Peyton team has successfully represented clients in courtrooms throughout WV and southeastern Ohio. The firm is known for its active community involvement and straightforward advice.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
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Speaker 2 (00:15):
The views and opinions expressed on this program do not
necessarily reflect the views and opinions of five eight WCHS
it's employees or WVRC media of Courts.
Speaker 3 (00:27):
Oh Created Equal, We're mass Come here in a Kate
Ray can robson tops one.
Speaker 4 (00:43):
You don't have to fight the law this morning. It
is Thursday morning, twenty minutes past eight o'clock. You can
put the law on your side by calling Hervey Paton
from the Pathon Law Firm this morning three zero four
three four five fifty eight fifty eight. Harvey's in the
studio with us this morning. Haven't seen Harvey and a
WHI How you doing this morning, Harvey?
Speaker 5 (00:57):
Well, I'm doing quite well. It's a beautiful morning. I mean,
I'm afraid it may be the precursor to some bad
weather on the way. The forecast for next week really sticks.
We're supposed to have a day on Monday where I
might reach forty. But it's the end of November. It's
getting ready for Thanksgiving. Deer season is going to start
a little bit of tracking snow to start. Deer season
(01:19):
won't be bad up in the mountains. We'll just but today.
Enjoy a day at a time, right exactly. Thays won't
be gorgeous. You gotta get yesterday, and you can't. You
don't know what's tomorrow, holl So, today is the day
that was a beautiful drive in you know, I was
listening to the intro music there. That's since I've sort
(01:40):
of entered circling the drain phase of my legal career.
Tom pretty much works with the advertising and optics and
email X which I know nothing at all about. A
(02:02):
query this morning on a Facebook post and well, you
didn't read my AX commentary? Am I responsible? I don't
know how to use it and I don't really and
I don't really want to learn at this stage of
my life. If you could just tell me what it said, uh,
I'll be glad to take a look at it. You know,
it's a big day in the Yesterday was a huge
(02:22):
day in the UH National legal world. The arguments in
front of the United States Supreme Court regarding the ability
of the Trump administration to use a We already have
a called.
Speaker 4 (02:36):
I think we have call right, let's talk about the
terraces here in just a second. We have a caller
that's called in this morning in our auto Q. That
means you have to identify yourself in the air. Callar
go ahead. What's your first name?
Speaker 6 (02:44):
Joe?
Speaker 7 (02:45):
Hey, Joe, do you have a question for Harvey this morning?
Speaker 6 (02:47):
I do, Harvey. I got a question about state planning
and passes at death deed. So if I have a house,
I'm retired and I've got one to make sure it
goes to my kids or whatever, and I create a
(03:10):
passes that death deed, Yes, I understand it that basically
as I when I reached my demise, I'll pull my
death the deed automatically goes to my children or whoever
I did that property to.
Speaker 5 (03:31):
Well, that's correct. Before night, before twenty fifteen, there was
an adequated method of being sure that children or some
favored person got a piece of real estate while retaining
some control by the lifetime owner. And that would be
to convey the property to normally a child or children
(03:55):
and retain what's called a life estate that would be
the right to live in, use and occupied with the
property for the term of your life, and then at
death what's called the remainder interests passed to children. That
was quite often used. It became outdated in twenty fifteen.
The problem with that procedure was and still is. I
(04:15):
still see a few of them being written, although I
wouldn't advise it. You lose control of your property because
the children when you create a life estate in yourself
with the remainder interest to your children and a deed,
they have a vested interest and you can't borrow money
against your house. You can't sell it without their signature
(04:37):
and consent. A transfer on death deed simply eliminated that
sort of fiction. I mean, you can now execute a deed.
It's called a transfer on death deed. You can convey
that future interest to your children or whoever you prefer,
and the deed simply says that this passes no immediate
interest in the property to the benefit fishery. But if
(05:01):
this deed is on record and unrevoked at the time
of my death, then they are the owners. It's not
like I'm sorry. Good.
Speaker 6 (05:10):
My question is so if that brings that actual part
of my question, So if I do a transfer on
death deed, I can still borrow money against my house.
Speaker 5 (05:21):
Oh yes, yeah, that's specifically dealt with in a statute.
Speaker 6 (05:24):
But what happens if if I get to where I'm
not able to take care of myself and I and
I have to go into a nursing home, then nursing
homes will try to take your property. Does that is
this the house still protected with a transfer on death deed?
Speaker 5 (05:42):
Well, first of all, a nursing home. The manner in
which real estate can become involved as an asset is
if a person enters long term care and they do
not have a long term care insurance policy or Medicare
(06:02):
will pay for a certain number of days of long
term care, assuming you're eligible for Medicare either because of
disability or age, and after that then the Medicaid program
will pay for long term care, but only if you
meet an asset desk. You need to reduce your net
(06:23):
worth of around thirty five hundred dollars. But the asset
does not include your residence. That may include other property
if you own a piece of commercial property, somewhere and
it has some value. Indeed, you could be required by
Medicaid Services to liquidate that property and apply the proceeds
to your care before Medicaid kicks in. That doesn't apply
(06:45):
to a residence. The law presumes that you're always going
to be able to return home. Even though that may
be a fiction, it's a legal fiction. So your house
is safe.
Speaker 6 (06:56):
From still be protected.
Speaker 5 (06:58):
It'll be protected. Now, Now what happens. What happens then
when you die? That's the question. If you have long
term care expenses that are paid by Medicaid and you
pass away, you own your residence, the Office of Medicare
and Medicaid Services, through a contractor, may file a lean
(07:18):
or a claim against your state to recover all or
a portion of the expenses they paid. Now, that would
suck in some real estate conveyances if they were made
within five years of the date you became eligible for
Medicaid services. Now does that apply to a transfer on
death deed. When the legislature enacted the transfer on death statute,
(07:44):
they specifically said in the Recitals to that code section
that this would remove that property from the Medicaid look back. Obviously,
if the deeds more than five years old, there's no
question about it. If it's almost in a meets transfer
on death, is there a look back? Well, our statute
(08:04):
says no, but it's a federal program, and I'm not
familiar with any litigation or administrative procedures in West Virginia
that have challenged that position. Now, the forms that are
filed wants to when a person passes away, if your
state is probated, do ask where there any transfers on death?
(08:28):
And then you have to list them out so that
potentially there could be a lean asserted depending on the
timing of the deed. Is it likely? Probably not? Kind
of lawyer say for one hundred percent for sure if
the conveyance is within five years of death. I mean,
I'm asked that frequently, and my answer to folks is
(08:48):
the same as I'm telling you, Well, the statute says
it's not applicable, but it's a federal program, and it
all depends on the attitude taken by the contractor or
the particular state that administers the program. In West Virginia.
Doesn't seem to have been a problem. It can never
do any harm. A transfer on death deed has really
(09:10):
no downside, it only has upside potential. You retain control
of your house, you can borrow money on it, you
can sell it if you want to liquidate it and
go to Florida. Or you can change your mind and
simply revoke the transfer on death deed before you die,
or you can name another beneficiary, so there is no
downside to that. And obviously, if obviously, if you meet
(09:33):
the five year lookback period, regardless of what any regulation says,
the home is protected from a look back, so.
Speaker 6 (09:43):
You could could go in if you say, two years
down the road you say, wow, I don't want to
really do a transfer on death to my children because
my spouse died and I met somebody else and I
wanted them to be able to stay in the house.
Speaker 5 (09:55):
Yeah, just revoke it. You can revoke it in writing
and record that it's not a problem. We have done
some of those, or you can write a succeeding transfer
on death deed. I mean, if you want your wife
to have the house, what I would recommend you do
is you know you own the home individually, because your
(10:15):
spouse passed away, and you probably have survivorship on the
deed to your house, so you own it absolutely by
operation of law. Is simply execute a deed from yourself
to yourself and your wife as joint tenants with survivorship,
and then it passes to her automatically. People ask a
lot about probate, and my advice to most folks, most
(10:39):
people who are just like us, working people who you know,
you've got a house, you've accumulated some savings for a
long term marriage or relationship. You don't want any more
property to pass through probate than is absolutely necessary. Designate
beneficiaries on all of your retirement account. That's essential for
(11:01):
tax purposes, joint ownership of automobiles. Put both names on
the title of your vehicles. If you have a savings
or checking account, or a certificate of deposit, those can
also be made what's called pod payable on death to
a certain individual and a transfer on death deed to someone.
(11:23):
None of that is part of your probated state, and
many people don't probate a spouse's a state or a
parent's of state because they don't need to. The wording
of the documents themselves. Pass the property, whether it's real
property or personal property, simply by virtue of the instrument
(11:43):
that designates a beneficiary. I would recommend, and I do
to folks, if you ought to write a simple will,
put it in a lock box, don't have to probate
it immediately. But sometimes things crop up. Case down in
Putnam County where if the lady didn't need to probate
her husband's estate, she thought because it only held property,
(12:07):
had to transfer on death on some other real estate. Well,
but two years later, come to find out he did
have an interest in some stock that he had earned
through his work. One of the plants done a nitro
and it was titled only in his name, traded on
a public exchange. And if that's the case, then probates necessary.
(12:28):
They won't transfer that stock unless there's a representative of
the estate appointed to do that. So in that case,
all right, go get the will and probate it, get
yourself appointed, transfer the stock, close out the estate. It's
just a state safeguard. It's a backup. But you know,
if you're come in like I spent a lot of
my time now talking to folks about things like this,
(12:49):
because their litigation is a young man's game. Really, my son, Tom,
what we've made our money on, mostly through almost fifty
years is people who are hurt car wrecks, railroad work workers, workers, comps,
so security disability. But I've always tried to keep a
hand in the community by doing the sort of things,
at least some of the sort of things that people need.
(13:11):
Don't do any bankruptcy or advanced tax work, but people
need to talk about real estate matters and need to
talk about what's going to happen with my property? Want
to die and so you know, I spent a lot
of time talking to people in the office about things
just like we're talking about. And if you sit down
and say, well, let's just list what you've got here,
what do you want to transfer, then we can just
(13:32):
go down that little checklist and try to minimize the
amount of your property. They'll ever be subject to probate period,
But a transfer on death deed, I think is I
see no downside to it. None.
Speaker 6 (13:46):
So all right, thank you, Colin, appreciate no problem.
Speaker 4 (13:49):
Hey, let's take your phone call. Thanks for calling in.
That leads a phone line open three zero four three
U fifty eight three zero four three four five fifty
to fifty eight. We'll take a rick coming up here
in a few minutes. I know, Harvey has a commentary
on tariff he's going to make. We've got a text
message as well from the seven to six zero nine
hundred Harvey My child, my child's school in Kannall County
just put up the mandated in God we Trust sign.
I don't have a problem with religion. However, I do
(14:11):
have a problem with state sponsored promotion of religion. Well,
let's see, we all know what God in God we
Trust is meant to promote. Do I have options for
legal recourse, preferably removal of the sign secondary option to
get my preferred religious sign up alongside the governor sign.
Speaker 5 (14:27):
Well, the signage that has been placed in public schools
as the result of an act of the legislature, as
I understand that the schools really has no choice. The
legislature says that all schools should have this sign out.
Is that infringe on the First Amendment, which says violates
(14:48):
the establishment Clause?
Speaker 3 (14:49):
Is?
Speaker 5 (14:49):
Does that constitute a state sponsorship of particular religious beliefs
and violation of the Establishment Clause? Well, challenge on currency,
There have been challenges to the in God be trusts
on some great seals of some institutions generally have not
been successful.
Speaker 7 (15:13):
What is God?
Speaker 5 (15:14):
I mean, I assume if you read in a purely
Judeo Christian sense, it's what is God? God's an overwhelming,
all seeing, omniscient power. That God's all of our lives.
It could be, Allah could be, it's it's almost part
of that white noise of religion, religiosity that surrounds the
(15:36):
American experiment, the American civilization. That's a really close call.
And now, whether you can have some signage placed in
your particular school reflecting your beliefs, that's up to the
board of well, first of all, it's up to the principle,
and then it's up to the board of education. They
(15:57):
certainly could do so. But the God we trust signage,
the school really has no choice.
Speaker 4 (16:05):
Yeah, I had a question about this, and maybe you can,
maybe you can redirect if this is right. It seems
to me I've followed some of these cases in the past.
It seems to me when you get more specific, like
the Ten Commandments, those have more trouble, where whereas the
the sort of nebulous God, it's considered tradition and most
people can fit that underneath their tent, unless, of course,
you're irreligious, I guess. But and then it shouldn't matter
(16:26):
to you. But that's at least my understanding. Like if
you get specific, like if like ten commandments, some places
it's gone, but in a lot of places where that's
been challenged, it has been overturned. So I wondered if
it's the specificity that matters.
Speaker 5 (16:37):
Sometimes it is. Indeed, the Ten Commandments are a different thing.
The Ten Commandments come from the Book of Genesis, and
they and they talk about they shall have no other
God before me, and it maybe the last four or
five of the commandments was direct you know, against adultery, fall, swearing, stealing, murder.
Clearly those are universal truths. There's no need I objectionable.
(17:00):
You can put a sign up in the schools about
good character. Generally, the Ten Commandments have been judged by
courts to be too specific, although they can be placed
on a blackboard with the part of an overall display
with other documents, other religious dot maybe from Islam or
(17:21):
hindu That you're correct, it's the more specific and directive
signage becomes where display becomes like the crash, the major
scene that was put up in Pittsburgh by Allegheny County
that drew the wrath of the courts, but it was
just moved to other property. You can put I mean,
(17:43):
you can do whatever you want to on your property.
You can put up a signed to Satan if you like.
It's a free country, but it's not a free country
for the majority to impose their religious views on a minority.
That's the first Amendment is meant to protect one of
the five free into The first Amendment is to be
free from the state established by a religion. And it
(18:05):
extends even to coercive conductor. So well, if we lead
children in the Lord's Prayer to commence the day at school,
and the answer is, well, if a child doesn't want
to pray, they don't have to. Well, but what six
or seven year old is going to sit there among
their classmates and not participate in what everyone else does.
(18:27):
There's a coercive nature to the prescribed conduct, and that's
almost universally or is universally disfavored in the courts in
the United States.
Speaker 8 (18:37):
You know.
Speaker 4 (18:37):
One of the things that strange to me about that
whole thing is back when I guess the eighties, when
I was going to a churchyard locally, fiery pastor that
we had up there was so adamant about number one,
as far as prayer in school goes, He's like, who
are they to tell us when, when and how we
can pray? You can pray anytime that you want to.
The state doesn't have to tell you when you can
pray pray in school all you want, They can't stop you.
(18:59):
I mean, the whole thing was like, a prayer is
a relationship between you and God. How is the state
and mandating if you can pray or not to start
to start the day. The state doesn't have to give
you time to do it. I mean, that was his
I mean, he was very adamant about that. His other
thing was and on top of that, I don't want
teachers responsible, teachers who are hired by the state responsible
for the spiritual guidance of my children. I want that
(19:20):
to be in my home and in my church, not
in the school. And he was very adam about that.
And that seems to have shifted sometime over the last
thirty years.
Speaker 5 (19:26):
Well, it has shifted considerably. We have to remember the
shoe can always be on the other foot. And are
those folks who say, well, we want this sun, or
we want this pledge, or we want this recitation in school,
how will you feel fifteen years for around twenty years
are around when your local demographic substantially changes and someone says, well,
(19:49):
here's what I want. Now now I'm in the majority,
and here's what i want every student have to do.
It's a slippery slope to start down. We're best just
start to touch it at all. Makes sense, right, Well,
that's the wisest choice to make is do not touch
it at all. If you're a public entity. Schools. Now
(20:10):
you know the Supreme Court, there's a prayer that opens
every session of Congress. They have a chaplain that is
simply considered by the courts to be a part of
the religious There's a really good book. It's called The
American Gospel. It's written by John Meacham. It's about twenty
years old. Looking up on the internet, pick up a
copy and he talked. That's what Meecham talks about is
the development from the beginning of the nation through today,
(20:35):
how there is there's an acceptable level of religiosity and
it's a good thing. I mean, I personally think that
we've lost a great deal of that commonality of the
sort of spiritual background of the United States that we're
all in this together. We should look out for each other.
Children should be fed and clothed and have the ability
(20:59):
to school. We should have positive freedom for adults. That
is a freedom to make yourself better, to make the
world better, which is sort of a but that that
that's the foundation of at least Christian doctrine is as
I understand it, and there's nothing wrong with that if
you lose that to pure secular thought. But then you
(21:23):
become France where where there's no no mention of religiosity
or I'm not make it a judgment on the Republic
of France. They're they're a noble ally except in times
of stress. I mean, they wouldn't let us fly across
French air territory to to bomb Tripoli. So but yeah,
(21:47):
I mean, I but it's like any other envelope. People
push it and it gets pushed in different directions. What's
the Norman leear with the is organization freedom from church
and state or division to church and state whatever. Or
on the other side, those folks some who just say,
(22:08):
well we should well we took prayer out of school,
the country went to hell in the handbasket. Well that
case was decided the Madeline Murio. Heircase was decided in
about nineteen sixty or sixty one. That was followed up
with the Vietnam War, the Watergate disaster, a huge recession
(22:29):
in two thousand and eight, the proliferation of the administrative state.
I mean a lot of things have changed in this
country that caused people stress and upset. I think that
far outweigh the decision that public prayer in public schools
was no. No, that's my personal opinion and I'm sure
(22:51):
others that disagree with it. But now we're going to
take a little break.
Speaker 4 (22:53):
Yeah, we'll take a break, and I know you want
to make a commentary on tariffs as we get no
other conversation before we come back. But you can call
in if you'd like two three zero four three four
five fifty eight three four five fifty fifty eight. You
can text threes are of four nine three five five
zero zero eight three zero four non three five five
zeros you eight Go ahead and take a break and
be back right after this. You're listening to ask the
lawyer with Harvey Payton from the Peyton Law Firm on five
Adwhs the Boys of Charleston.
Speaker 9 (23:13):
If you've been injured. You need a lawyer who knows
West Virginia because they live in West Virginia. Tom and
Harvey Payton were born and raised here. They've spent decades
fighting for injury victims, and they know how to get results.
At the Peyton Law Firm, you get straight talk, strong representation,
and local attorneys who care. Call seven five five fifty
(23:35):
five fifty six today or visit Peyton Law Firm dot com.
Speaker 2 (23:39):
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Speaker 4 (24:27):
You're listening to ask the lawyer five adw CHS. The
Voice of Charleston and we have Bob from Public Tellico
who is called in during the break and has a
question for Harvey Peyton from the Peyton Law Firm one line,
Payton Lawfirm, dot Com p E Y t U and
Payton lawfrom dot com. And Nitro West Virginia, by the way,
a report of an accident in Nitro at the foot
of the Saint Oman's Nitro Bridge right there on First Avenue.
(24:48):
There's there's an accident that's closing down traffic one both
ways over the bridge. So he might wan be aware
of that if you're in Nitro right now. But we
have Bob from Poka TALCOA on line right now. Bob,
good morning. What's your question for Harvey.
Speaker 5 (25:00):
Morning? Bob? Are you there?
Speaker 7 (25:02):
Let me try again? There you go, Bob, go ahead,
you what's your question for Harvey?
Speaker 8 (25:06):
Well, I actually got a question for you if you
would allow me.
Speaker 7 (25:10):
Oh, I could try.
Speaker 8 (25:12):
I've talked to you before. I'm blind and poketo.
Speaker 7 (25:16):
Yeah, Bob, yeah, yeah, I know who you are. Bob.
Speaker 8 (25:20):
And for the last I guess I'll listen to your
station twelve thirteen hours a day and for the last
two or three weeks at seven thirty at night, I
get nothing but static for the rest of the night,
and the static last until about eight thirty in the morning.
(25:46):
Have y'all cut power or something during the night.
Speaker 4 (25:49):
Hopefully, well, you are exactly tracking our power change at
the station. So FCC requires us to change the signal
direction that we go on at night, so the AM
signal carries farther at night, so you don't want to
override other signals that are on five to eighty that
aren't in the Charleston area. So we do have to
change our power, and that determines on the position of
the sun and things along those lines. So that changes
(26:10):
throughout the course of the year, and unfortunately what you're
experiencing right now, and it hopefully won't last much longer.
I don't know if you remember or not, but early
last year in twenty twenty four, we had one of
our towers that got completely destroyed.
Speaker 7 (26:20):
I got pulled down by a big storm that we
had that came through here.
Speaker 4 (26:24):
We've been in the process of rebuilding that we're close
to fully re engaging the best signal that we've had
in probably thirty years. It's going to be incredible when
it's ready. Our engineers are ready to flip the switches
on these things, but we're still not quite up to
full power yet. So that change in power, although it
is something that happens every year and you can expect it,
that is something that very soon you're going to find
(26:45):
you should be able to get our signal again once
we get back up to full power with the tower
that got pulled down.
Speaker 8 (26:51):
Okay, long, it's just not permanent.
Speaker 7 (26:54):
That's good, No, sir, it's not.
Speaker 4 (26:55):
And I appreciate you listening for twelve or thirteen hours
a day. Hopefully we'll get that fix and you can
get it back to twenty four.
Speaker 8 (27:00):
Thank you.
Speaker 7 (27:01):
All right, Bob, thanks so much, thanks for calling in.
Speaker 4 (27:04):
We have another caller that's called and hopefully this isn't
about the rating who it's about the law firm.
Speaker 7 (27:08):
Good morning. You're on the air with Harvey Payton. What's
your first name?
Speaker 6 (27:11):
Good morning.
Speaker 10 (27:11):
My name is Jennifer and I live in Tornadoes.
Speaker 7 (27:14):
Hey, Jennifer, how are you doing this morning?
Speaker 10 (27:16):
I'm doing pretty well.
Speaker 6 (27:17):
Thank you.
Speaker 10 (27:17):
I feel sorry for that guy because I listen to
you guys from the time I get up until the
time I go to bed, so I can understand his disappoint.
Speaker 4 (27:25):
I think we've talked before too, Jennifer, if I'm not mistaken,
I have a question for Harvey.
Speaker 10 (27:31):
Harvey, your law firm did prepare our will, so we
have a will in place. My husband and I do
not have children, so we left the primary beneficiaries for
everything are my sister and my husband's brother, and that
includes the house. There's nobody in my family or his
(27:53):
who would want to live here, so it'll probably be sold.
Now you know, there's a good chance that one or
the other of them will predecee both of us. Then
his brothers not in good health, so that could happen.
So then the next layer if they're not, If they
(28:15):
neither of them are alive, I guess, then it goes
to my nieces and nephews. Niece and nephews, I can't
imagine any of them would want to live here either,
So to me, it seems kind of complicated that then
my niece, who is the executrix, would have to sell
the property and split the proceeds. So what makes the
(28:38):
most sense in a case like that, instead of having
it in the will, have how would.
Speaker 7 (28:44):
You do that?
Speaker 5 (28:45):
Well? I'm sorry, I didn't mean to catch you off ahead.
Speaker 10 (28:51):
No, that's just it. It's like, after listening to that previous caller,
I thought, well, it does make more sense to make
it transfer upon death, but it still gets complicated with
trying to divide it up later on. Should there be
the mandate that it's sold, and if one of them
would happen to one, if they would have to buy
the other one out or however that works.
Speaker 5 (29:12):
Right, and that is a step beyond the transfer on
death deed. Well, you can. You can designate multiple beneficiaries
and a transfer on death and say that it's either
goes to them as survivors or as tenants in common
or if they're deceased. But you approach a testamentary disposition
(29:33):
when you get too far down the line. On transfer
on death works best when you've got a soul or
maybe two or three objects of your bounty who are
on a demographic who will probably survive you. In your situation,
you know you've got you worry about, well, what happens
(29:55):
if your brother in law predeceases, Well, your will. I
don't have it in front of me, and I certainly
wouldn't talk on the air about what the contents were.
But let's assume it said nothing else but to your
brother and sister. Well, we have an anti lapse statue
in West Virginia which says that the interest which would
have gone to the brother then passes to his descendants,
(30:18):
his children or grandchildren as the case may be, or.
Speaker 10 (30:22):
His wife if she's still living.
Speaker 5 (30:25):
No, it doesn't. The anti lap statute does not. It
deals specifically with dissent to issue of a person not
not to.
Speaker 10 (30:36):
Asprise no children. So that's not an issue because he
has no children. So okay, Well, maybe I need because
I guess you recommend this periodically. Anyway, it's probably been
at least five years, probably a little longer since Tom
did that will for us, maybe it's time to review
it could will be.
Speaker 5 (30:55):
And you know, particularly if you think there's going to
be a change in circumstance, as it's more abid a
bit to speak of, if you're going to have someone
who's a beneficiary who may predecease you, then let's deal
with the reality of that situation. And the reality is,
as far as real estate's concerned, if nobody's going to
want the house, and this happens all the time, folks
(31:17):
have kids or grandchildren or nieces and nephews who are
already established. They have homes, they have families, maybe they
live in other states. Then direct the personal representative and
authorize them to sell the property, or if it's to
be divided in kind, they can sell it to one
(31:37):
of the other heirs with credit against any other interest
than the estate for their share. And that way there's
a specific directive, there will be no problem with the
executor or executrics selling the property and dividing the money.
Which money is the easiest thing to divide. You You
always want to plan, or I always think it's prudent
(31:58):
to plan, never to leave a piece of property and
what's called airship which owned by a various disparate number
of folks. Take a look at your brother in law.
He and his wife have no children. If he dies, well,
who are his He has no issue, but he has
collateral relatives. He has a brother. You may have sisters.
(32:21):
You know, you've got nieces and nephews. They would fall.
But that's a little bit of a complicated process. The
easiest thing to do.
Speaker 10 (32:30):
Is uncle, it was a huge mess.
Speaker 5 (32:33):
Well it can be a mess, and it can cost
thousands of dollars and involve court intervention, and you don't
ever want to leave that burden on because you're not
writing your will for yourself. You're writing it for the
convenience and ease of those who survive you, and you
want it to be as smooth and effortless as possible.
(32:54):
I mean probate people fear that in West Virginia, the
probate process is not super complex. We have no inheritance
tax in West Virginia and haven't had for decades. It's
a very very rare occurrence that there would be any
liability for US estate tax because the exemption for a
(33:14):
payment of that tax is eleven million dollars, so it
only applies to the very biggest estates there might be.
You've got to be really careful about your IRA and
four one K because if their tax deferred, you don't
want those to pay paid through your estate. They should
be paid to a beneficiary because there can be income
tax proceeds. The thing about real estate and other assets,
(33:40):
this is a little bit into the weeds, but there's
a thing called a stepped up basis. Now, I don't
know what you paid for your house out how long
have you lived.
Speaker 7 (33:47):
Out in Tornado forty three years.
Speaker 5 (33:50):
Okay, well, Andrew Heights, is that school still open as
it closed?
Speaker 10 (33:56):
Oh? No, it's very much open, very much open out.
Speaker 6 (34:02):
Hey.
Speaker 5 (34:03):
I had a lot of friends from Tornado when I
was It was a family of cons and Cochranes and
Frinkies that lived out there, and they were all it's
a nice Oh yeah, Billy, Jean and Calea. So yeah.
The if you if you bought your house thirty three
(34:23):
years ago, you probably didn't pay near what it would
sell for today, and so if some third party acquired
that house, the difference between what was paid for it initially,
that's your cost basis. If you paid one hundred thousand
for your house, it's worth three hundred to day, there'd
be a two hundred thousand dollars gain that could be
(34:45):
taxed to fifteen percent, but not to you because you
get a bailout, and not to your heirs, because if
you inherit a house or a tangible piece of personal
property like stocks, bonds, the heir, the beneficiary of your state,
takes title of that at the value it had at
(35:06):
the time of your death. So any gain that accrued
during your lifetime is just simply subsumed. If it's sold
for the price that it apprais is for three year
state there is no tax, no, no capital gains tax.
So that and that's really something to consider. They're going to.
Speaker 10 (35:24):
Yeah, and well, I'll make a list of concerns we
might have. And I don't think my husband's ever thought
of any of these things. And I really hadn't thought
of it recently. I listened to you to your show. Well,
like I said, all the time, we'll.
Speaker 5 (35:37):
Make a list. Just come on and we'll talk about it.
I've got plenty of time.
Speaker 10 (35:41):
Okay, okay, Okay, Tom the one who did it, But
I could make an appointment with you too.
Speaker 5 (35:45):
Sure, Yeah, we're in the same pot.
Speaker 10 (35:48):
Okay, okay, thank you, Jennifer.
Speaker 7 (35:50):
Thanks for the phone call. We appreciate that.
Speaker 4 (35:52):
Peyton Law firm. You need to find more information, you
can find it online. Pat them off from dot com
the phone number three or four seventy five five fifty
five fifty six. Threes are four seven five five fifty
five fifty six. We were just talking about First Avenue
in Nitro a little bit ago. You don't your office
isn't far from there.
Speaker 5 (36:05):
No from the Saint Albans. The intersection. Center Street is
the street that crosses the bridge to intersects with throughout
twenty five and it is it is an intersection where
you have to pay attention. And you've got a t
intersection with left turn lights in one direction. I mean
a lot of people jump those lights.
Speaker 7 (36:27):
It's kind of a wide intersection. Is a little different.
Speaker 5 (36:31):
There's a merge lane. People turn from Main Avenue on
the Center Street. They're actually turning into traffic that's coming
from Route twenty five. Its it's a modern update intersection.
It's just one where you have to watch. You have
to pay attention, and sometimes folks who don't travel there
often may drift over a lane and boom, there you
have it. I hope no one was hurt. That's a
(36:52):
horrible thing. Car wrecks are a horrible thing. I just
heard on the radio this morning where an arrest has
been made in a hit and run gentleman down in
Mason County was killed. I might have touched on this,
I think a couple of weeks ago, and hear about
a hit and run accident. Now the driver in that
case has been identified, so it's not a hit and
run by an unknown party. If you suffer a loss
(37:16):
a hitting run by an unknown party, don't give up
the ship because you have insurance on your own car
policy that will cover the damage is done by a
hitting and run unknown drivers. It's covered under your uninsured
motors coverage. The law presumes that a person who inflicts
personal or property damage with a vehicle leaves the scene
unreported and has not found. Well, there's no insurance there.
(37:40):
You don't know who it is, and so your own policy,
up to the limits of your uninsured coverage, will will
take care of that. I just hope that no one
was injured. You know, the lady from Tornado, she talked
about the Cochrane family. It just shows I mean, I
think older baby boomers, then I'm an older baby boomer.
(38:03):
You know, we still have those values and culcated a
nice from our parents. I mean, my father was a
nineteen year old kid, lived on a farm outside saying
ah was next thing, you know, he's flying in the
bubble of a catalina across the Caribbean. Mister Cochrane was
a Mareene Corps vetter in audible, So we still respect
our views. I meant they're family, their trumpies but we
(38:25):
get along fine because they say, well, we're all in
the same boat out of here on different ships. We're
in the same boat town. Does that mean we're finished.
That's a law firm twenty eight oh one first avenue.
If you suffer a loss or an injury, either a personal, financial, physical,
well at least think about us. We're handy, we're at life.
We've been here for over fifty years, and our lawyers
(38:48):
are all licensed to practice in the state of West Virginia.
Speaker 4 (38:51):
You'll talk one of the two, talk to one of
the two, and they're all all their experiences right here.
Thank you everyone for your calls, your text or emails,
everything today that made this show what it was. Thanks
so much for tuning in. Dave Allen's up next with
five ed Love. I'll be back this afternoon at three
or six with Dave Weekly on Hotline Harvey. Thanks for
your tom Thank you, see you next time.
Speaker 7 (39:08):
Have a great day. Everyone listening to five AD w
c HS The Voice of Charleston.
Speaker 9 (39:15):
W c HS A W two four three d r
F M Charleston W two A three HQ Cross Lanes,
a WVRC Media station.
Speaker 7 (39:23):
We're proud to live here too.
Unlock your dream property with Meeks Realty Group, where Rich
the realtor makes real estate dreams a reality, whether it's
residential or commercial. We've got Charleston to Huntington covered. Your
key to exceptional real estate experience is start here Meeks
Realty Group. Contact us at Meeks dot us.
Speaker 2 (00:15):
The views and opinions expressed on this program do not
necessarily reflect the views and opinions of five eight WCHS
it's employees or WVRC media of Courts.
Speaker 3 (00:27):
Oh Created Equal, We're mass Come here in a Kate
Ray can robson tops one.
Speaker 4 (00:43):
You don't have to fight the law this morning. It
is Thursday morning, twenty minutes past eight o'clock. You can
put the law on your side by calling Hervey Paton
from the Pathon Law Firm this morning three zero four
three four five fifty eight fifty eight. Harvey's in the
studio with us this morning. Haven't seen Harvey and a
WHI How you doing this morning, Harvey?
Speaker 5 (00:57):
Well, I'm doing quite well. It's a beautiful morning. I mean,
I'm afraid it may be the precursor to some bad
weather on the way. The forecast for next week really sticks.
We're supposed to have a day on Monday where I
might reach forty. But it's the end of November. It's
getting ready for Thanksgiving. Deer season is going to start
a little bit of tracking snow to start. Deer season
(01:19):
won't be bad up in the mountains. We'll just but today.
Enjoy a day at a time, right exactly. Thays won't
be gorgeous. You gotta get yesterday, and you can't. You
don't know what's tomorrow, holl So, today is the day
that was a beautiful drive in you know, I was
listening to the intro music there. That's since I've sort
(01:40):
of entered circling the drain phase of my legal career.
Tom pretty much works with the advertising and optics and
email X which I know nothing at all about. A
(02:02):
query this morning on a Facebook post and well, you
didn't read my AX commentary? Am I responsible? I don't
know how to use it and I don't really and
I don't really want to learn at this stage of
my life. If you could just tell me what it said, uh,
I'll be glad to take a look at it. You know,
it's a big day in the Yesterday was a huge
(02:22):
day in the UH National legal world. The arguments in
front of the United States Supreme Court regarding the ability
of the Trump administration to use a We already have
a called.
Speaker 4 (02:36):
I think we have call right, let's talk about the
terraces here in just a second. We have a caller
that's called in this morning in our auto Q. That
means you have to identify yourself in the air. Callar
go ahead. What's your first name?
Speaker 6 (02:44):
Joe?
Speaker 7 (02:45):
Hey, Joe, do you have a question for Harvey this morning?
Speaker 6 (02:47):
I do, Harvey. I got a question about state planning
and passes at death deed. So if I have a house,
I'm retired and I've got one to make sure it
goes to my kids or whatever, and I create a
(03:10):
passes that death deed, Yes, I understand it that basically
as I when I reached my demise, I'll pull my
death the deed automatically goes to my children or whoever
I did that property to.
Speaker 5 (03:31):
Well, that's correct. Before night, before twenty fifteen, there was
an adequated method of being sure that children or some
favored person got a piece of real estate while retaining
some control by the lifetime owner. And that would be
to convey the property to normally a child or children
(03:55):
and retain what's called a life estate that would be
the right to live in, use and occupied with the
property for the term of your life, and then at
death what's called the remainder interests passed to children. That
was quite often used. It became outdated in twenty fifteen.
The problem with that procedure was and still is. I
(04:15):
still see a few of them being written, although I
wouldn't advise it. You lose control of your property because
the children when you create a life estate in yourself
with the remainder interest to your children and a deed,
they have a vested interest and you can't borrow money
against your house. You can't sell it without their signature
(04:37):
and consent. A transfer on death deed simply eliminated that
sort of fiction. I mean, you can now execute a deed.
It's called a transfer on death deed. You can convey
that future interest to your children or whoever you prefer,
and the deed simply says that this passes no immediate
interest in the property to the benefit fishery. But if
(05:01):
this deed is on record and unrevoked at the time
of my death, then they are the owners. It's not
like I'm sorry. Good.
Speaker 6 (05:10):
My question is so if that brings that actual part
of my question, So if I do a transfer on
death deed, I can still borrow money against my house.
Speaker 5 (05:21):
Oh yes, yeah, that's specifically dealt with in a statute.
Speaker 6 (05:24):
But what happens if if I get to where I'm
not able to take care of myself and I and
I have to go into a nursing home, then nursing
homes will try to take your property. Does that is
this the house still protected with a transfer on death deed?
Speaker 5 (05:42):
Well, first of all, a nursing home. The manner in
which real estate can become involved as an asset is
if a person enters long term care and they do
not have a long term care insurance policy or Medicare
(06:02):
will pay for a certain number of days of long
term care, assuming you're eligible for Medicare either because of
disability or age, and after that then the Medicaid program
will pay for long term care, but only if you
meet an asset desk. You need to reduce your net
(06:23):
worth of around thirty five hundred dollars. But the asset
does not include your residence. That may include other property
if you own a piece of commercial property, somewhere and
it has some value. Indeed, you could be required by
Medicaid Services to liquidate that property and apply the proceeds
to your care before Medicaid kicks in. That doesn't apply
(06:45):
to a residence. The law presumes that you're always going
to be able to return home. Even though that may
be a fiction, it's a legal fiction. So your house
is safe.
Speaker 6 (06:56):
From still be protected.
Speaker 5 (06:58):
It'll be protected. Now, Now what happens. What happens then
when you die? That's the question. If you have long
term care expenses that are paid by Medicaid and you
pass away, you own your residence, the Office of Medicare
and Medicaid Services, through a contractor, may file a lean
(07:18):
or a claim against your state to recover all or
a portion of the expenses they paid. Now, that would
suck in some real estate conveyances if they were made
within five years of the date you became eligible for
Medicaid services. Now does that apply to a transfer on
death deed. When the legislature enacted the transfer on death statute,
(07:44):
they specifically said in the Recitals to that code section
that this would remove that property from the Medicaid look back. Obviously,
if the deeds more than five years old, there's no
question about it. If it's almost in a meets transfer
on death, is there a look back? Well, our statute
(08:04):
says no, but it's a federal program, and I'm not
familiar with any litigation or administrative procedures in West Virginia
that have challenged that position. Now, the forms that are
filed wants to when a person passes away, if your
state is probated, do ask where there any transfers on death?
(08:28):
And then you have to list them out so that
potentially there could be a lean asserted depending on the
timing of the deed. Is it likely? Probably not? Kind
of lawyer say for one hundred percent for sure if
the conveyance is within five years of death. I mean,
I'm asked that frequently, and my answer to folks is
(08:48):
the same as I'm telling you, Well, the statute says
it's not applicable, but it's a federal program, and it
all depends on the attitude taken by the contractor or
the particular state that administers the program. In West Virginia.
Doesn't seem to have been a problem. It can never
do any harm. A transfer on death deed has really
(09:10):
no downside, it only has upside potential. You retain control
of your house, you can borrow money on it, you
can sell it if you want to liquidate it and
go to Florida. Or you can change your mind and
simply revoke the transfer on death deed before you die,
or you can name another beneficiary, so there is no
downside to that. And obviously, if obviously, if you meet
(09:33):
the five year lookback period, regardless of what any regulation says,
the home is protected from a look back, so.
Speaker 6 (09:43):
You could could go in if you say, two years
down the road you say, wow, I don't want to
really do a transfer on death to my children because
my spouse died and I met somebody else and I
wanted them to be able to stay in the house.
Speaker 5 (09:55):
Yeah, just revoke it. You can revoke it in writing
and record that it's not a problem. We have done
some of those, or you can write a succeeding transfer
on death deed. I mean, if you want your wife
to have the house, what I would recommend you do
is you know you own the home individually, because your
(10:15):
spouse passed away, and you probably have survivorship on the
deed to your house, so you own it absolutely by
operation of law. Is simply execute a deed from yourself
to yourself and your wife as joint tenants with survivorship,
and then it passes to her automatically. People ask a
lot about probate, and my advice to most folks, most
(10:39):
people who are just like us, working people who you know,
you've got a house, you've accumulated some savings for a
long term marriage or relationship. You don't want any more
property to pass through probate than is absolutely necessary. Designate
beneficiaries on all of your retirement account. That's essential for
(11:01):
tax purposes, joint ownership of automobiles. Put both names on
the title of your vehicles. If you have a savings
or checking account, or a certificate of deposit, those can
also be made what's called pod payable on death to
a certain individual and a transfer on death deed to someone.
(11:23):
None of that is part of your probated state, and
many people don't probate a spouse's a state or a
parent's of state because they don't need to. The wording
of the documents themselves. Pass the property, whether it's real
property or personal property, simply by virtue of the instrument
(11:43):
that designates a beneficiary. I would recommend, and I do
to folks, if you ought to write a simple will,
put it in a lock box, don't have to probate
it immediately. But sometimes things crop up. Case down in
Putnam County where if the lady didn't need to probate
her husband's estate, she thought because it only held property,
(12:07):
had to transfer on death on some other real estate. Well,
but two years later, come to find out he did
have an interest in some stock that he had earned
through his work. One of the plants done a nitro
and it was titled only in his name, traded on
a public exchange. And if that's the case, then probates necessary.
(12:28):
They won't transfer that stock unless there's a representative of
the estate appointed to do that. So in that case,
all right, go get the will and probate it, get
yourself appointed, transfer the stock, close out the estate. It's
just a state safeguard. It's a backup. But you know,
if you're come in like I spent a lot of
my time now talking to folks about things like this,
(12:49):
because their litigation is a young man's game. Really, my son, Tom,
what we've made our money on, mostly through almost fifty
years is people who are hurt car wrecks, railroad work workers, workers, comps,
so security disability. But I've always tried to keep a
hand in the community by doing the sort of things,
at least some of the sort of things that people need.
(13:11):
Don't do any bankruptcy or advanced tax work, but people
need to talk about real estate matters and need to
talk about what's going to happen with my property? Want
to die and so you know, I spent a lot
of time talking to people in the office about things
just like we're talking about. And if you sit down
and say, well, let's just list what you've got here,
what do you want to transfer, then we can just
(13:32):
go down that little checklist and try to minimize the
amount of your property. They'll ever be subject to probate period,
But a transfer on death deed, I think is I
see no downside to it. None.
Speaker 6 (13:46):
So all right, thank you, Colin, appreciate no problem.
Speaker 4 (13:49):
Hey, let's take your phone call. Thanks for calling in.
That leads a phone line open three zero four three
U fifty eight three zero four three four five fifty
to fifty eight. We'll take a rick coming up here
in a few minutes. I know, Harvey has a commentary
on tariff he's going to make. We've got a text
message as well from the seven to six zero nine
hundred Harvey My child, my child's school in Kannall County
just put up the mandated in God we Trust sign.
I don't have a problem with religion. However, I do
(14:11):
have a problem with state sponsored promotion of religion. Well,
let's see, we all know what God in God we
Trust is meant to promote. Do I have options for
legal recourse, preferably removal of the sign secondary option to
get my preferred religious sign up alongside the governor sign.
Speaker 5 (14:27):
Well, the signage that has been placed in public schools
as the result of an act of the legislature, as
I understand that the schools really has no choice. The
legislature says that all schools should have this sign out.
Is that infringe on the First Amendment, which says violates
(14:48):
the establishment Clause?
Speaker 3 (14:49):
Is?
Speaker 5 (14:49):
Does that constitute a state sponsorship of particular religious beliefs
and violation of the Establishment Clause? Well, challenge on currency,
There have been challenges to the in God be trusts
on some great seals of some institutions generally have not
been successful.
Speaker 7 (15:13):
What is God?
Speaker 5 (15:14):
I mean, I assume if you read in a purely
Judeo Christian sense, it's what is God? God's an overwhelming,
all seeing, omniscient power. That God's all of our lives.
It could be, Allah could be, it's it's almost part
of that white noise of religion, religiosity that surrounds the
(15:36):
American experiment, the American civilization. That's a really close call.
And now, whether you can have some signage placed in
your particular school reflecting your beliefs, that's up to the
board of well, first of all, it's up to the principle,
and then it's up to the board of education. They
(15:57):
certainly could do so. But the God we trust signage,
the school really has no choice.
Speaker 4 (16:05):
Yeah, I had a question about this, and maybe you can,
maybe you can redirect if this is right. It seems
to me I've followed some of these cases in the past.
It seems to me when you get more specific, like
the Ten Commandments, those have more trouble, where whereas the
the sort of nebulous God, it's considered tradition and most
people can fit that underneath their tent, unless, of course,
you're irreligious, I guess. But and then it shouldn't matter
(16:26):
to you. But that's at least my understanding. Like if
you get specific, like if like ten commandments, some places
it's gone, but in a lot of places where that's
been challenged, it has been overturned. So I wondered if
it's the specificity that matters.
Speaker 5 (16:37):
Sometimes it is. Indeed, the Ten Commandments are a different thing.
The Ten Commandments come from the Book of Genesis, and
they and they talk about they shall have no other
God before me, and it maybe the last four or
five of the commandments was direct you know, against adultery, fall, swearing, stealing, murder.
Clearly those are universal truths. There's no need I objectionable.
(17:00):
You can put a sign up in the schools about
good character. Generally, the Ten Commandments have been judged by
courts to be too specific, although they can be placed
on a blackboard with the part of an overall display
with other documents, other religious dot maybe from Islam or
(17:21):
hindu That you're correct, it's the more specific and directive
signage becomes where display becomes like the crash, the major
scene that was put up in Pittsburgh by Allegheny County
that drew the wrath of the courts, but it was
just moved to other property. You can put I mean,
(17:43):
you can do whatever you want to on your property.
You can put up a signed to Satan if you like.
It's a free country, but it's not a free country
for the majority to impose their religious views on a minority.
That's the first Amendment is meant to protect one of
the five free into The first Amendment is to be
free from the state established by a religion. And it
(18:05):
extends even to coercive conductor. So well, if we lead
children in the Lord's Prayer to commence the day at school,
and the answer is, well, if a child doesn't want
to pray, they don't have to. Well, but what six
or seven year old is going to sit there among
their classmates and not participate in what everyone else does.
(18:27):
There's a coercive nature to the prescribed conduct, and that's
almost universally or is universally disfavored in the courts in
the United States.
Speaker 8 (18:37):
You know.
Speaker 4 (18:37):
One of the things that strange to me about that
whole thing is back when I guess the eighties, when
I was going to a churchyard locally, fiery pastor that
we had up there was so adamant about number one,
as far as prayer in school goes, He's like, who
are they to tell us when, when and how we
can pray? You can pray anytime that you want to.
The state doesn't have to tell you when you can
pray pray in school all you want, They can't stop you.
(18:59):
I mean, the whole thing was like, a prayer is
a relationship between you and God. How is the state
and mandating if you can pray or not to start
to start the day. The state doesn't have to give
you time to do it. I mean, that was his
I mean, he was very adamant about that. His other
thing was and on top of that, I don't want
teachers responsible, teachers who are hired by the state responsible
for the spiritual guidance of my children. I want that
(19:20):
to be in my home and in my church, not
in the school. And he was very adam about that.
And that seems to have shifted sometime over the last
thirty years.
Speaker 5 (19:26):
Well, it has shifted considerably. We have to remember the
shoe can always be on the other foot. And are
those folks who say, well, we want this sun, or
we want this pledge, or we want this recitation in school,
how will you feel fifteen years for around twenty years
are around when your local demographic substantially changes and someone says, well,
(19:49):
here's what I want. Now now I'm in the majority,
and here's what i want every student have to do.
It's a slippery slope to start down. We're best just
start to touch it at all. Makes sense, right, Well,
that's the wisest choice to make is do not touch
it at all. If you're a public entity. Schools. Now
(20:10):
you know the Supreme Court, there's a prayer that opens
every session of Congress. They have a chaplain that is
simply considered by the courts to be a part of
the religious There's a really good book. It's called The
American Gospel. It's written by John Meacham. It's about twenty
years old. Looking up on the internet, pick up a
copy and he talked. That's what Meecham talks about is
the development from the beginning of the nation through today,
(20:35):
how there is there's an acceptable level of religiosity and
it's a good thing. I mean, I personally think that
we've lost a great deal of that commonality of the
sort of spiritual background of the United States that we're
all in this together. We should look out for each other.
Children should be fed and clothed and have the ability
(20:59):
to school. We should have positive freedom for adults. That
is a freedom to make yourself better, to make the
world better, which is sort of a but that that
that's the foundation of at least Christian doctrine is as
I understand it, and there's nothing wrong with that if
you lose that to pure secular thought. But then you
(21:23):
become France where where there's no no mention of religiosity
or I'm not make it a judgment on the Republic
of France. They're they're a noble ally except in times
of stress. I mean, they wouldn't let us fly across
French air territory to to bomb Tripoli. So but yeah,
(21:47):
I mean, I but it's like any other envelope. People
push it and it gets pushed in different directions. What's
the Norman leear with the is organization freedom from church
and state or division to church and state whatever. Or
on the other side, those folks some who just say,
(22:08):
well we should well we took prayer out of school,
the country went to hell in the handbasket. Well that
case was decided the Madeline Murio. Heircase was decided in
about nineteen sixty or sixty one. That was followed up
with the Vietnam War, the Watergate disaster, a huge recession
(22:29):
in two thousand and eight, the proliferation of the administrative state.
I mean a lot of things have changed in this
country that caused people stress and upset. I think that
far outweigh the decision that public prayer in public schools
was no. No, that's my personal opinion and I'm sure
(22:51):
others that disagree with it. But now we're going to
take a little break.
Speaker 4 (22:53):
Yeah, we'll take a break, and I know you want
to make a commentary on tariffs as we get no
other conversation before we come back. But you can call
in if you'd like two three zero four three four
five fifty eight three four five fifty fifty eight. You
can text threes are of four nine three five five
zero zero eight three zero four non three five five
zeros you eight Go ahead and take a break and
be back right after this. You're listening to ask the
lawyer with Harvey Payton from the Peyton Law Firm on five
Adwhs the Boys of Charleston.
Speaker 9 (23:13):
If you've been injured. You need a lawyer who knows
West Virginia because they live in West Virginia. Tom and
Harvey Payton were born and raised here. They've spent decades
fighting for injury victims, and they know how to get results.
At the Peyton Law Firm, you get straight talk, strong representation,
and local attorneys who care. Call seven five five fifty
(23:35):
five fifty six today or visit Peyton Law Firm dot com.
Speaker 2 (23:39):
The attorney's referenced in this ad or lifelong residence and
are licensed to practice law in the state of West Virginia.
The latest and news Talking sports on five EIGHTWCHS has
brought to you by Jarrett Construction.
Speaker 9 (23:49):
Visit Jerrett Dashconstruction dot com for more information.
Speaker 1 (23:53):
Time right on budget, Come on cherity.
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a message of gratitude for a veteran or right one
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West Virginia.
Speaker 4 (24:27):
You're listening to ask the lawyer five adw CHS. The
Voice of Charleston and we have Bob from Public Tellico
who is called in during the break and has a
question for Harvey Peyton from the Peyton Law Firm one line,
Payton Lawfirm, dot Com p E Y t U and
Payton lawfrom dot com. And Nitro West Virginia, by the way,
a report of an accident in Nitro at the foot
of the Saint Oman's Nitro Bridge right there on First Avenue.
(24:48):
There's there's an accident that's closing down traffic one both
ways over the bridge. So he might wan be aware
of that if you're in Nitro right now. But we
have Bob from Poka TALCOA on line right now. Bob,
good morning. What's your question for Harvey.
Speaker 5 (25:00):
Morning? Bob? Are you there?
Speaker 7 (25:02):
Let me try again? There you go, Bob, go ahead,
you what's your question for Harvey?
Speaker 8 (25:06):
Well, I actually got a question for you if you
would allow me.
Speaker 7 (25:10):
Oh, I could try.
Speaker 8 (25:12):
I've talked to you before. I'm blind and poketo.
Speaker 7 (25:16):
Yeah, Bob, yeah, yeah, I know who you are. Bob.
Speaker 8 (25:20):
And for the last I guess I'll listen to your
station twelve thirteen hours a day and for the last
two or three weeks at seven thirty at night, I
get nothing but static for the rest of the night,
and the static last until about eight thirty in the morning.
(25:46):
Have y'all cut power or something during the night.
Speaker 4 (25:49):
Hopefully, well, you are exactly tracking our power change at
the station. So FCC requires us to change the signal
direction that we go on at night, so the AM
signal carries farther at night, so you don't want to
override other signals that are on five to eighty that
aren't in the Charleston area. So we do have to
change our power, and that determines on the position of
the sun and things along those lines. So that changes
(26:10):
throughout the course of the year, and unfortunately what you're
experiencing right now, and it hopefully won't last much longer.
I don't know if you remember or not, but early
last year in twenty twenty four, we had one of
our towers that got completely destroyed.
Speaker 7 (26:20):
I got pulled down by a big storm that we
had that came through here.
Speaker 4 (26:24):
We've been in the process of rebuilding that we're close
to fully re engaging the best signal that we've had
in probably thirty years. It's going to be incredible when
it's ready. Our engineers are ready to flip the switches
on these things, but we're still not quite up to
full power yet. So that change in power, although it
is something that happens every year and you can expect it,
that is something that very soon you're going to find
(26:45):
you should be able to get our signal again once
we get back up to full power with the tower
that got pulled down.
Speaker 8 (26:51):
Okay, long, it's just not permanent.
Speaker 7 (26:54):
That's good, No, sir, it's not.
Speaker 4 (26:55):
And I appreciate you listening for twelve or thirteen hours
a day. Hopefully we'll get that fix and you can
get it back to twenty four.
Speaker 8 (27:00):
Thank you.
Speaker 7 (27:01):
All right, Bob, thanks so much, thanks for calling in.
Speaker 4 (27:04):
We have another caller that's called and hopefully this isn't
about the rating who it's about the law firm.
Speaker 7 (27:08):
Good morning. You're on the air with Harvey Payton. What's
your first name?
Speaker 6 (27:11):
Good morning.
Speaker 10 (27:11):
My name is Jennifer and I live in Tornadoes.
Speaker 7 (27:14):
Hey, Jennifer, how are you doing this morning?
Speaker 10 (27:16):
I'm doing pretty well.
Speaker 6 (27:17):
Thank you.
Speaker 10 (27:17):
I feel sorry for that guy because I listen to
you guys from the time I get up until the
time I go to bed, so I can understand his disappoint.
Speaker 4 (27:25):
I think we've talked before too, Jennifer, if I'm not mistaken,
I have a question for Harvey.
Speaker 10 (27:31):
Harvey, your law firm did prepare our will, so we
have a will in place. My husband and I do
not have children, so we left the primary beneficiaries for
everything are my sister and my husband's brother, and that
includes the house. There's nobody in my family or his
(27:53):
who would want to live here, so it'll probably be sold.
Now you know, there's a good chance that one or
the other of them will predecee both of us. Then
his brothers not in good health, so that could happen.
So then the next layer if they're not, If they
(28:15):
neither of them are alive, I guess, then it goes
to my nieces and nephews. Niece and nephews, I can't
imagine any of them would want to live here either,
So to me, it seems kind of complicated that then
my niece, who is the executrix, would have to sell
the property and split the proceeds. So what makes the
(28:38):
most sense in a case like that, instead of having
it in the will, have how would.
Speaker 7 (28:44):
You do that?
Speaker 5 (28:45):
Well? I'm sorry, I didn't mean to catch you off ahead.
Speaker 10 (28:51):
No, that's just it. It's like, after listening to that previous caller,
I thought, well, it does make more sense to make
it transfer upon death, but it still gets complicated with
trying to divide it up later on. Should there be
the mandate that it's sold, and if one of them
would happen to one, if they would have to buy
the other one out or however that works.
Speaker 5 (29:12):
Right, and that is a step beyond the transfer on
death deed. Well, you can. You can designate multiple beneficiaries
and a transfer on death and say that it's either
goes to them as survivors or as tenants in common
or if they're deceased. But you approach a testamentary disposition
(29:33):
when you get too far down the line. On transfer
on death works best when you've got a soul or
maybe two or three objects of your bounty who are
on a demographic who will probably survive you. In your situation,
you know you've got you worry about, well, what happens
(29:55):
if your brother in law predeceases, Well, your will. I
don't have it in front of me, and I certainly
wouldn't talk on the air about what the contents were.
But let's assume it said nothing else but to your
brother and sister. Well, we have an anti lapse statue
in West Virginia which says that the interest which would
have gone to the brother then passes to his descendants,
(30:18):
his children or grandchildren as the case may be, or.
Speaker 10 (30:22):
His wife if she's still living.
Speaker 5 (30:25):
No, it doesn't. The anti lap statute does not. It
deals specifically with dissent to issue of a person not
not to.
Speaker 10 (30:36):
Asprise no children. So that's not an issue because he
has no children. So okay, Well, maybe I need because
I guess you recommend this periodically. Anyway, it's probably been
at least five years, probably a little longer since Tom
did that will for us, maybe it's time to review
it could will be.
Speaker 5 (30:55):
And you know, particularly if you think there's going to
be a change in circumstance, as it's more abid a
bit to speak of, if you're going to have someone
who's a beneficiary who may predecease you, then let's deal
with the reality of that situation. And the reality is,
as far as real estate's concerned, if nobody's going to
want the house, and this happens all the time, folks
(31:17):
have kids or grandchildren or nieces and nephews who are
already established. They have homes, they have families, maybe they
live in other states. Then direct the personal representative and
authorize them to sell the property, or if it's to
be divided in kind, they can sell it to one
(31:37):
of the other heirs with credit against any other interest
than the estate for their share. And that way there's
a specific directive, there will be no problem with the
executor or executrics selling the property and dividing the money.
Which money is the easiest thing to divide. You You
always want to plan, or I always think it's prudent
(31:58):
to plan, never to leave a piece of property and
what's called airship which owned by a various disparate number
of folks. Take a look at your brother in law.
He and his wife have no children. If he dies, well,
who are his He has no issue, but he has
collateral relatives. He has a brother. You may have sisters.
(32:21):
You know, you've got nieces and nephews. They would fall.
But that's a little bit of a complicated process. The
easiest thing to do.
Speaker 10 (32:30):
Is uncle, it was a huge mess.
Speaker 5 (32:33):
Well it can be a mess, and it can cost
thousands of dollars and involve court intervention, and you don't
ever want to leave that burden on because you're not
writing your will for yourself. You're writing it for the
convenience and ease of those who survive you, and you
want it to be as smooth and effortless as possible.
(32:54):
I mean probate people fear that in West Virginia, the
probate process is not super complex. We have no inheritance
tax in West Virginia and haven't had for decades. It's
a very very rare occurrence that there would be any
liability for US estate tax because the exemption for a
(33:14):
payment of that tax is eleven million dollars, so it
only applies to the very biggest estates there might be.
You've got to be really careful about your IRA and
four one K because if their tax deferred, you don't
want those to pay paid through your estate. They should
be paid to a beneficiary because there can be income
tax proceeds. The thing about real estate and other assets,
(33:40):
this is a little bit into the weeds, but there's
a thing called a stepped up basis. Now, I don't
know what you paid for your house out how long
have you lived.
Speaker 7 (33:47):
Out in Tornado forty three years.
Speaker 5 (33:50):
Okay, well, Andrew Heights, is that school still open as
it closed?
Speaker 10 (33:56):
Oh? No, it's very much open, very much open out.
Speaker 6 (34:02):
Hey.
Speaker 5 (34:03):
I had a lot of friends from Tornado when I
was It was a family of cons and Cochranes and
Frinkies that lived out there, and they were all it's
a nice Oh yeah, Billy, Jean and Calea. So yeah.
The if you if you bought your house thirty three
(34:23):
years ago, you probably didn't pay near what it would
sell for today, and so if some third party acquired
that house, the difference between what was paid for it initially,
that's your cost basis. If you paid one hundred thousand
for your house, it's worth three hundred to day, there'd
be a two hundred thousand dollars gain that could be
(34:45):
taxed to fifteen percent, but not to you because you
get a bailout, and not to your heirs, because if
you inherit a house or a tangible piece of personal
property like stocks, bonds, the heir, the beneficiary of your state,
takes title of that at the value it had at
(35:06):
the time of your death. So any gain that accrued
during your lifetime is just simply subsumed. If it's sold
for the price that it apprais is for three year
state there is no tax, no, no capital gains tax.
So that and that's really something to consider. They're going to.
Speaker 10 (35:24):
Yeah, and well, I'll make a list of concerns we
might have. And I don't think my husband's ever thought
of any of these things. And I really hadn't thought
of it recently. I listened to you to your show. Well,
like I said, all the time, we'll.
Speaker 5 (35:37):
Make a list. Just come on and we'll talk about it.
I've got plenty of time.
Speaker 10 (35:41):
Okay, okay, Okay, Tom the one who did it, But
I could make an appointment with you too.
Speaker 5 (35:45):
Sure, Yeah, we're in the same pot.
Speaker 10 (35:48):
Okay, okay, thank you, Jennifer.
Speaker 7 (35:50):
Thanks for the phone call. We appreciate that.
Speaker 4 (35:52):
Peyton Law firm. You need to find more information, you
can find it online. Pat them off from dot com
the phone number three or four seventy five five fifty
five fifty six. Threes are four seven five five fifty
five fifty six. We were just talking about First Avenue
in Nitro a little bit ago. You don't your office
isn't far from there.
Speaker 5 (36:05):
No from the Saint Albans. The intersection. Center Street is
the street that crosses the bridge to intersects with throughout
twenty five and it is it is an intersection where
you have to pay attention. And you've got a t
intersection with left turn lights in one direction. I mean
a lot of people jump those lights.
Speaker 7 (36:27):
It's kind of a wide intersection. Is a little different.
Speaker 5 (36:31):
There's a merge lane. People turn from Main Avenue on
the Center Street. They're actually turning into traffic that's coming
from Route twenty five. Its it's a modern update intersection.
It's just one where you have to watch. You have
to pay attention, and sometimes folks who don't travel there
often may drift over a lane and boom, there you
have it. I hope no one was hurt. That's a
(36:52):
horrible thing. Car wrecks are a horrible thing. I just
heard on the radio this morning where an arrest has
been made in a hit and run gentleman down in
Mason County was killed. I might have touched on this,
I think a couple of weeks ago, and hear about
a hit and run accident. Now the driver in that
case has been identified, so it's not a hit and
run by an unknown party. If you suffer a loss
(37:16):
a hitting run by an unknown party, don't give up
the ship because you have insurance on your own car
policy that will cover the damage is done by a
hitting and run unknown drivers. It's covered under your uninsured
motors coverage. The law presumes that a person who inflicts
personal or property damage with a vehicle leaves the scene
unreported and has not found. Well, there's no insurance there.
(37:40):
You don't know who it is, and so your own policy,
up to the limits of your uninsured coverage, will will
take care of that. I just hope that no one
was injured. You know, the lady from Tornado, she talked
about the Cochrane family. It just shows I mean, I
think older baby boomers, then I'm an older baby boomer.
(38:03):
You know, we still have those values and culcated a
nice from our parents. I mean, my father was a
nineteen year old kid, lived on a farm outside saying
ah was next thing, you know, he's flying in the
bubble of a catalina across the Caribbean. Mister Cochrane was
a Mareene Corps vetter in audible, So we still respect
our views. I meant they're family, their trumpies but we
(38:25):
get along fine because they say, well, we're all in
the same boat out of here on different ships. We're
in the same boat town. Does that mean we're finished.
That's a law firm twenty eight oh one first avenue.
If you suffer a loss or an injury, either a personal, financial, physical,
well at least think about us. We're handy, we're at life.
We've been here for over fifty years, and our lawyers
(38:48):
are all licensed to practice in the state of West Virginia.
Speaker 4 (38:51):
You'll talk one of the two, talk to one of
the two, and they're all all their experiences right here.
Thank you everyone for your calls, your text or emails,
everything today that made this show what it was. Thanks
so much for tuning in. Dave Allen's up next with
five ed Love. I'll be back this afternoon at three
or six with Dave Weekly on Hotline Harvey. Thanks for
your tom Thank you, see you next time.
Speaker 7 (39:08):
Have a great day. Everyone listening to five AD w
c HS The Voice of Charleston.
Speaker 9 (39:15):
W c HS A W two four three d r
F M Charleston W two A three HQ Cross Lanes,
a WVRC Media station.
Speaker 7 (39:23):
We're proud to live here too.
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