Have you been thinking about finally creating your Last Will and Testament? Or maybe you have one and it has not been updated in ten years or more? Do you have a Power of Attorney?

If you don’t have any estate planning documents, you have a house built of straw. There are plenty of big, bad wolves who will blow your house down. If your estate plan is old and outdated, then you have built a house of sticks. Most of those same big, bad wolves can still blow your house down. Your family and your affairs will be left unprotected!

These wolves are real, expensive, and burdensome problems. The wrong person may end up managing your affairs, and the “default” heirs created by law might not be the heirs you want! If you become disabled or incapacitated or die with an outdated or missing estate plan, then your loved ones will inevitably face great difficulties and significant costs. Maybe you have a simple situation and you do not think it is necessary. Unfortunately, the unexpected can and often does happen. What if you developed dementia or memory loss, or have a stroke, or are injured in a car accident? What if your child has financial problems or becomes disabled? If any of these things happens, then your family will be forced to endure a public court proceeding with significant costs and ongoing court supervision of your affairs.

With a new set of estate planning documents prepared by an experienced attorney, you will have built a solid house of bricks. There’s no need to be afraid of any big, bad wolves!

Everyone needs an estate plan, whether you are young or old, with a simple or a complex situation. At a minimum, you need three documents: a Will, a financial Power of Attorney, and an Advance Medical Directive (also called a Living Will or a Health Care Power of Attorney). A Living Trust (also called a Revocable Trust) is frequently helpful for many people, too.

At Purnell, McKennett & Menke, PC, our attorneys have the experience and skills to analyze your situation correctly and provide you with the best estate plan to carry out your wishes and protect you and your loved ones from the big, bad wolves. We work hard to make sure all of our documents are up-to-date with current laws and practices. All of the “what-ifs” will be covered. Your family will be so thankful, and you can rest easy. Give us a call to help you get started! We will make the process as convenient as possible and explain everything along the way.

Phillip J. Menke is a Partner at Purnell, McKennett and Menke, PC specializing in wills, estate documents, probate, trust administration and elder law. Mr. Menke is certified by the Supreme Court of Virginia as a Guardian ad litem for incapacitated adults. Phillip can be reached at (703) 368-9196 or pmenke@manassaslawyers.com.

Is Bankruptcy for Me?

Posted by Carl Berry on February 6, 2017

Wouldn’t it be great if the Biblical law listed in Deuteronomy 15:1 applied today without having to file any paperwork? The ancient scripture states in pertinent part “at the end of every seven years you shall grant a release . . . every creditor shall release what he has lent to his neighbor . . . .” Well in the United States, the U.S. Bankruptcy Code allows consumers and business to file every eight years, with some exceptions of course.

When filing for bankruptcy, debtors have a range of different options to choose from, depending on their circumstances. Generally speaking, Chapter 7 and Chapter 13 bankruptcy are those most commonly pursued by individuals in the United States. However, there are important differences between these two types of bankruptcy that can substantially impact a debtor’s future life.

The two main bankruptcy programs for individual debtors in the U.S. differ in important ways, including:

 Chapter 7Chapter 11
Asset LiquidationSome assets are liquidated to repay creditorsNo asset liquidation
Means TestDisposable income must pass the Means TestNo Means Test requirement
Debt RepaymentSome creditors may be repaid through partial
liquidation (usually unlikely)
Repayment plan is established to pay-off
creditors in a manageable manner usually
within 5 to 7 years

Pursuing bankruptcy is an important decision, one which should not be made lightly. Individuals should review their debts to make sure that the debts they are seeking to discharge are dischargeable. For example, the following debts cannot be discharged: (1) Child support and alimony; (2) fines, penalties, and restitution you owe for breaking the law; (3) certain tax debts; (4) most student loans; (5) debts arising out of injury to another person; (6) HOA, condo, and coop dues.

Lastly, there is life after bankruptcy. For most it’s a fresh start with some new challenges, such as rebuilding your credit, but that is for another conversation.

Carl “Dusty” Berry is an Associate at Purnell, McKennett & Menke, PC specializing in bankruptcy, criminal defense, and immigration law. Carl can be reached at (703) 368-9196 or cberry@manassaslawyers.com

By Kendell Asbenson

According to federal law, everybody must be paid minimum wage unless they are exempt. Some states have higher minimum wage requirements, but in Virginia, we follow the federal minimum wage, which is currently $7.25 per hour. The requirements are, however, more complicated than this, and here are a few things you need to know about managing employees in Virginia who are paid hourly:

Overtime. An employer must pay at least time-and-a-half for all time over 40 hours worked by an employee in one seven day workweek. If an employee works 50 hours one week and 30 hours the next week, the employer must pay 10 hours of overtime. An employer is not permitted to average the time worked.

    • Nights, Weekends, or Holidays. Employers are not required to pay extra for time worked on nights, weekends, or holidays.

 

    • Keep Records. Federal laws require the employer to keep records of the hours employees work.

 

 

    • Compensatory Time. “Comp Time” is allowing an employee to take extra time off from work after a long week instead of paying overtime. This is never permitted for hourly employees, except for some government employees.

 

    • Breaks. There is no requirement that employers provide breaks for employees, except that employees under the age 16 must receive a 30 minute break for each 5 hour period that they work.

 

    • Paydays. Hourly employees must be paid at least once every two weeks or twice in each month (salaried employees must be paid at least once per month).

 

    • Withholding Wages. An employer needs written, signed authorization from an employee before it withholds any amount from any paycheck except for payroll, wage, or withholding taxes (or in accordance with the law).

 

    • Termination. An employee may be terminated for any reason except for a discriminatory or illegal reason. If an employer ever terminates an employee, the employer needs a record to be able to prove that it did not terminate the employee for a discriminatory or illegal reason, so the employer should document an employee’s file every time a warning or reprimand is issued to the employee.

 

    • Pay Upon Termination. Upon termination, an employee must be paid through the date of termination but does not need to be paid until his or her normal pay date.

 

    • Discrimination. It is a violation of federal law, and in most cases state law, to discriminate against someone in hiring, firing, or any other matter because of that person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 and older), disability, or genetic information.

 

The typical statute of limitations for a violation of minimum wage and overtime rules is two or three years. Do not violate these rules even if employees begs for an exception, an employee can still sue an employer for violating the law even if the employee asked the employer to break the law. Note that there are some variances in some of these rules in other states.

If you have any questions about these requirements, we are happy to arrange a meeting.

The PM&M Bulletin is not intended to be legal advice, but is for informational purposes only.

Kendell S. Asbenson is an Associate at Purnell, McKennett and Menke, PC specializing in litigation and employment law. Kendell can be reached at (703) 368-9196 or kasbenson@manassaslawyers.com.

By Kendell Asbenson

On November 22, 2016 United States District Judge Amos Mazzant of the Eastern District of Texas issued a preliminary injunction that delays the implementation of the new Department of Labor (DOL) salary requirements that were scheduled to go into effect on December 1, 2016. The DOL regulations would have increased the minimum salary required for an employee to be exempt from overtime laws from $23,600 per year to $47,476 per year.

This preliminary injunction applies “nationwide,” and prevents the DOL from “implementing and enforcing” this new salary requirement. This means that employers are not required to follow the new regulations at this time; however, this is not the final ruling in this case and if employers choose to rely on this injunction and not implement the new salary requirements, then they must keep themselves informed in the coming months on the status of this case to determine if the regulations are declared unlawful. Please watch the PM&M Bulletin for further updates on this case.

There is a good chance that these regulations will be declared unlawful. Before an injunction can be issued, a judge must be convinced that the party asking for the injunction demonstrates a substantial likelihood of success on the merits. Judge Mazzant held that there is a substantial likelihood that the regulations will be determined to be unlawful. Judge Mazzant reasoned, essentially, that the DOL exceeded its authority granted to it by Congress.

This case will, in all likelihood, not be decided before the change of presidential administrations. There is a significant chance that President Elect Trump will not vigorously defend these DOL regulations, which were pursued by President Obama. All of this should give hope to employers, and to a large extent employees, that these regulations will not go into effect and current salaried employees can retain their salaried status.

The PM&M Bulletin will be updated if there are changes to this case.

The PM&M Bulletin is not intended to be legal advice, but is for informational purposes only.

Kendell S. Asbenson is an Associate at Purnell, McKennett and Menke, PC specializing in litigation and employment law. Kendell can be reached at (703) 368-9196 or kasbenson@manassaslawyers.com.

Note: On November 22, 2016 a Texas Federal Court delayed the enforcement of the increase in the salary requirements. Click here to read about it.

On December 1, 2016 new Department of Labor regulations go into effect. These regulations change the minimum annual salary required in order for an employee to be exempt from overtime laws from $23,600 to $47,476 (or $913/week). This is a large increase, but less than what the Department of Labor initially proposed. Employers need a plan to prepare for these changes. In some cases it may make sense to start paying employees on an hourly basis instead of a salary basis. If an employee is moved from salary basis to hourly basis, the employer has strict obligations to track the time that the employee works and is required to pay time and a half for every hour over 40 hours worked in a week.

Now is also an excellent opportunity to make sure that all of your salaried employees are actually exempt from overtime laws. To be a salaried employee the employee must meet the following criteria:

  1. Paid on a Salary Basis. The employee must be paid on a salary basis, that is, the employee is paid a fixed amount for every workweek that the employee does any work.
  2. Salary Level ($47,476 per year). The employee now must be paid $47,476 per year or $913 per week. Only lawyers, doctors, and teachers are exempt from this minimum salary requirement. In some cases non-discretionary bonuses may count toward the minimum salary, call us to see if this applies to you.
  3. Kind of Work. The employee must perform one of three kinds of work to be exempt: executive, administrative, professional, outside sales, or computer employees.

 

If you have employees whose job duties do not involve executive, administrative, professional, outside sales, or computer employees work, but you are paying them on a salary basis, now is the time to bring your company into compliance with the law and pay them hourly.

Finally, it is important to keep employee morale in mind while making changes. You can convert any salary employee to hourly so they earn the same wage by dividing their salary by number of hours they work in a year, for example divide the salary by 2080 if the employee works 40 hours per week. Explain to employees that you will not allow them to suffer because of the change, the rules just now require that they be paid hourly.

If you have any questions about these new regulations or what types of work qualify for salary basis, we are happy to arrange a meeting.

The PM&M Blog is not intended to be legal advice, but is for informational purposes only. 

 

Phil Menke

Phil Menke

It is very easy to procrastinate creating your Last Will and Testament.  Many people wait until they hear about a friend or a relative whose family member died, and due to lack of planning there were many frustrations, difficulties, or worse.

Anyone with minor children should be especially motivated to create their Will.  You can nominate your top choices for a Guardian for your children; those persons who you think are best suited to guide your children to adulthood as you would have wished.  Your Will can also appoint a trustee to hold your children’s inheritance until they reach an appropriate age, which you will decide.  While your trustee is holding and investing the inheritance, they can pay your child’s tuition, health, and other expenses as needed.  Without experience managing their own budget, most children are not ready to manage their inheritance – large or small – until they are at least 25.  In order for you to keep some strings attached to your hard-earned money, you need a Will.

You will feel so much more at ease once this is checked off your “to-do” list, but having a Will is just one step towards getting your house in order.  Our law firm is ready to help you with all of your estate planning needs.

Phillip J. Menke, Esq.
Attorney at Law
Coon & Purnell, PC
P.O. Box 530
Manassas, VA 20108
(703) 368-9196 tel.
pmenke@manassaslawyers.com

Phillip J. Menke is a Partner at Purnell, McKennett and Menke, PC specializing in wills, estate documents, probate, trust administration and elder law. Mr. Menke is certified by the Supreme Court of Virginia as a Guardian ad litem for incapacitated adults. Phillip can be reached at (703) 368-9196 or pmenke@manassaslawyers.com.

supreme-court-of-virginia

Purnell, McKennett & Menke Wins at Supreme Court of Virginia: Reverses Trial Court to Preserve Private Landowners’ Rights

Attorneys from the law firm Purnell,McKennett & Menke PC, recently convinced the Supreme Court of Virginia that a trial court in Highland County, Virginia, made an error. The trial court’s ruling agreed with the wishes of some local residents to require private landowners, clients of Purnell,McKennett & Menke, to take down a gate they had erected on a privately owned road. The local residents formed a group and sued the landowners. It was true that the road had been open to the public since it was built by the Civilian Conservation Corps in the 1930’s. However, neither the County nor the State accepted or agreed to maintain the CCC Road.


Attorney Timothy M. Purnell argued to the Highland County Circuit Court that since the road had never been accepted by the government, the private landowners retained the right to close it off from public use at any time, according to long-established Virginia law. Although the trial judge agreed with Mr. Purnell on many of the legal issues, the trial judge ordered the landowners to take down the gate and keep the CCC Road open.

Attorney Phillip J. Menke was the primary author of the written appellate briefs that convinced the Supreme Court of Virginia to take another look at the case. Mr. Menke’s legal research supporting the private landowners’ position discovered numerous helpful Supreme Court cases dating from as far back as 1805. Mr. Menke’s thorough work presented all of the important precedents that the Supreme Court would need to reverse the trial court.

Mr. Purnell then appeared at the Supreme Court of Virginia in Richmond to present oral arguments and answer the questions posed by the Supreme Court Justices. On January 13, 2012, the Supreme Court issued its opinion agreeing with the arguments of the Coon & Purnell attorneys, and reversed the order of the trial court. Thus, an injustice was corrected and the private landowners were restored to their full rights to their private property.

At Purnell, McKennett & Menke PC, our attorneys have the experience and legal skills to protect your rights at every level of the judicial system.

 

Phillip J. Menke is a Partner at Purnell, McKennett and Menke, PC specializing in wills, estate documents, probate, trust administration and elder law. Mr. Menke is certified by the Supreme Court of Virginia as a Guardian ad litem for incapacitated adults. Phillip can be reached at (703) 368-9196 or pmenke@manassaslawyers.com.