08/13/2026 Ask the Lawyer with Harvey Peyton

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And if it very pleasant, good morning to you. You're listening to where you can put the law on your side. I don't have to fight the law this morning. The Payton law firm is in studio taking your phone calls and your text questions. Harvey, good morning. How are you doing this morning? I'm doing quite well. Dang it. We're going to have to use that other microphone. This happened to me yesterday, and I thought I fixed it. Let's just move that over. Sorry about that. Can you hear me now? Yes, I can. Can you hear me now? Yes, we can. Well, I'm doing quite well today. I've got a text yesterday from Tom. spoke of last week, he and his family, his wife, and the two kids took this adventure trip hiking to the bottom of the Grand Canyon. He told me he was going to do that. And he is now and has been since he was a little fellow, Petrofied of Heights. So I don't know how that was going to go, but he told us before he started on the track that there'd be two days that they're completely out of touch because there's no signal, no... communication. They were staying somewhere called the Phantom Ranch. Well, last evening I got a text, which included a little film clip. Apparently had a waterline problem at Phantom Ranch, so they closed it a day early. So they hiked back up out of the canyon. It's like a 6,000 foot change in elevation. grueling a hike, he said, particularly for someone who's terrified of heights. And then the film clip was of his son, Houston, treading along this trail, which to me was terrifying. And I'm not afraid of heights. Anyway, so they're on their way back. And I think I'll probably be put back on the bench for the next few weeks while Tom carries through the rest of the summer. Today, however, August 13th. is a big day. In our family, today is my youngest grandchild, Lillian John Roberts, the daughter of Sarah Peyton John Roberts and Brian John Roberts, 16th birthday. Oh, congratulations. She's getting ready to start her junior year at St. Albans High School. She'll be, let's see, one, two, three, fourth generation Red Dragon, just like her older brother, Logan, was before her. And so happy birthday, Lillian, so I'm sure she's not listening. She's either still in bed or playing a video game, but Papa Harvey is trying. Now, thinking about a grandchild, I got to thinking this morning, actually last evening, about, you know, we've got such a tremendous national debt. It's a real problem. It's a threat to our children and grandchildren. That's what the politicians always say before doing nothing. So I thought, how can we save a little money in today's climate? Well, last evening on the news, I saw where the ever-vigilant Department of Homeland Security, their subset immigration and customs enforcement, aka ICE, They've been authorized to spend several million dollars buying what are referred to as shock gloves. They demonstrated them on the news. They're these glove apparatus. They look like big black work gloves. They have a little button on the side. I assume they have some sort of high-powered battery or a battery pack. But so if you as a part of the crowd control or discouraging someone from, for instance,

filming you or holding a sign that says melt ice or ice out, you can grab their forearm, activate the glove, and drop them to the ground. You know, here we are. I think, well, why are we doing that? I mean, I read this morning in the New York Times where ICE, under the fearless leadership of Kristi Noem, had engaged in a no-bid contract with one of her political contributors. Does that sound strange? And purchased 10 used aircraft. Three of them were luxury jets, one of which was equipped with a full bedroom that Christie and her pair of them were used to fly around. And the other was offered to Kash Patel, the luxury private jet. I assume to fly around with his erstwhile country singer. The seven used 737s, which were desperately needed to carry out deportations. Not leased planes or military aircraft, as had been done for decades, but we have to have as an emergency seven U.S. 37s on a no-bid contract. They're sitting on a tarmac now. in Louisiana, not been flown because DHS has no personnel who can service, maintain, or fly the airplanes. So there they are. So I think, well, how does that relate to shock gloves? Well, I'm thinking, you know, Like the West Side Volunteer Fire Department, you know where it is right there at the bottom of the Cold River Road. Greg Fire Department has been providing fire protection to my house, my mom and dad's house, Sarah's house for 70 years. They would probably like to have some new fire hose. So I'm sure that DHS, if they're worried about crowd control, they could approach these fire departments and say, well, why don't we just buy your old hose? We can use that for crowd control. It's proven. And don't stop there. You could go to Kent Lee and Hart, the Commissioner of Agriculture, and said, Kent, why don't you contact all these stock sales, stockyards we have here around West Virginia and the cattle farmers? And surely they'd like to trade their cattle prods if they're still working well to DHS in exchange for some money. I mean, look, we know that firehouses and cattle prods work. They worked well through the 50s and 60s, didn't they, down south? So why take a chance on high-priced shot gloves when the answer is right here before your face? I'm eager to see if my advice will be taken, I doubt it. It'll be fodder for the ever-vigilant Larry Pack. He's always looking to save some money. Although, we'll say, Treasurer of Pack, his comments are quite prescient right now. It's going to be a heck of a... primary election for the governor's race, I think, in 2008, brutal knockdown. We'll see what happens. And that's just the primary. Oh, yeah. That's just the primary. So, well, I hate to get off on the greenbrier because that's just like a horse that's been beaten. But I noticed today, you know, Big Cole has had a pattern of behavior.

in West Virginia for all my life, which has been the threat of economic disaster. If you don't let us run heavy coal trucks and tear up your roads, 200 coal miners are going to lose a job in Logan County. Or if we can't pollute a little bit of water down there on the Guyon Dot Reservoir, well, we're going to have to shut down a prep plant. So... We really don't want to clean this up because it's going to cost us some money, so let's just change the law to make the illegal legal. That apparently is carried over to the mastermind of the Greenbrier because this morning it's like, well, unless the lottery commission can violate every rule and every regulation and every rule of common sense and approve a casino license for a... a hotel that just had $11 million in federal tax liens filed against it, we're going to have to lay off tiny people. And that has to be done by Friday. Well, surprise, surprise. That's not going to work. The game's changed. It's not the cold business. It's a politician whose opponent is running the executive branch. And it's the director of the lottery. David Bradley, who's a person of... to my observation, integrity, and follows the rules. So it was, however, interesting to see this big puffed up. Oh, it'll cost the state millions and it will have to put people out of work. No, the way to keep people working and not cost the state millions would have been to file. your audited finance reports by March 31 with the lottery commission as their regulations require instead of waiting until they threaten to shut off your license and filing them the day before your license was shut off on June the 30th. Or maybe instead of stealing money from employees by holding it out of their paychecks, you could have reached into your own wallet. and taken less money out of the pot and paid the withholdings over to the state and federal governments and avoided $11 million in tax liens. So that effort to shift blame and play the coal card I don't think is going to get very far. We'll see how it flies on Friday. Anyway, I wanted to talk today. You know, you can sort of tell when things are a particular idea is percolating up because... You know, we deal a lot with the public. People call us. We try to return every phone call every day. And even if it's a, even if it's a topic, if someone takes a message and says, well, that's not something I can really deal with. Courtesy requires you call the person back and explain to them why. You know, so they don't feel ignored or disrespected. But from time to time, things pop up in. conversations and questions. And I think, as I've said before, I mean, I've had some health issues, but I'm fine. But Tom does all the litigation now. And I primarily meet with clients in the office, do some intake.

I guess, like some of the big advertisers, I would be considered the intake department. I noticed one that said our intake department is great. Well, I think ours is too. A lot of experience, yeah. And I'll have transactions work because I'm one of the lawyers that is still a dinosaur and knows how to do things like help people straighten out. a title of a piece of property or help people straighten out a will that perhaps wasn't written well or what was handwritten or help them, you know, they have a particular way that they'd like to have their estate distributed. I can talk to them about that and do it for them in a way that's quick, inexpensive, efficient, carries out their wishes. So one thing I notice... The word probate, at least in the last two or three years, and even more so perhaps in the last six months, probate has become just a dirty word. How do I avoid probate? I don't want probate. Well, the idea of probate is simply an orderly process set up under state law and administered by the counties. to see to the legal and verifiable transfer of your assets, the bounty of your lifetime, to those who you desire it, desire to receive it at the time of your death. That's customarily done by a will. Everybody has a will. If you don't write one, the state has already written one for you. If you die without a will, there's a set of statutes. that govern how your estates to be distributed. And I say it today, I've said it several times, in this modern era of what we call blended families, where there are second and third marriages, there are children born to each marriage partner, then be children born to their union. It's really important that you start thinking about the manner in which your estates to be distributed because the laws are quite different. A couple who has married, been married for 50 years, they have three children all their own. The husband dies without a will as our wife gets everything. Now, if you change that scenario and he has a child by a prior marriage or a relationship, then a significant percentage of what the wife would receive will go to the children. So you really need to talk to a lawyer about that. But what's cropped up even more frequently lately is, well, do I need a trust? Someone told me I should have a trust. I want a trust so that I can avoid probate. Well, first of all, with a conventional trust, you're not going to avoid probate for one particular reason. The way that trusts are used as a manner of... estate management in Florida, a good bit, almost exclusively in California. My uncle Jim, who was a career man in the Navy. When he retired, he stayed in San Diego. And his wife passed, and he married another lady whose husband had been a Navy guy and passed away. And they lived there until, you know, lived a full life. And I just made an inquiry about his...

really about his personal effects. If you had anything that, you know, my dad's because I wanted it, and it was a stepdaughter. So, well, you know, Harvey, it's all governed by a trust. That's the way we do things. There really isn't any probate. Well, that's always been the law in California. The rule in West Virginia has generally been a simple, well-written, admissible will is, I believe, superior. Here's the problem with the trust, and I've seen a lot of them, but people have downloaded from the Internet. What you would do if you were going to establish a trust for the purpose of, quote, defeating probate, you establish through a written document, something called the Harvey D. Payton revocable intervivis trust. That means it's written during my lifetime, but I can revoke it at any time. And I named myself trustee. And I write, you know, that I can maintain and administer my property for my benefit and make withdrawals during my lifetime or revoke the trust and reclaim all the property. But if I die of the trust then provides it becomes irrevocable. Can't be revoked in the terms of the trust have to be carried out. That's normally, and I think appropriately accompanied by a will. I think a trust becomes a separate entity. If you set up a lifetime trust, you have to assume the responsibility of transferring your real estate, your stock investments, your accounts into the trust. They have to, you know, you have to get a taxpayer ID number for the trust. It operates as a separate entity. I've seen it done correctly. I had helped a person handle a lady's estate, significant, sizable estate. The woman knew what she was doing after her husband passed. She took the carbider, you know, when they had good benefits, took the life insurance, formed a trust. She was an accountant, transferred everything appropriately, got a tax number, spent the rest of her life investing in the market. But she had a will, which said, you know, all the rest in residue of my property, because everybody's going to own something, you're going to have your furniture, you're going to have your jewelry, you're going to have things that can't be represented by really a transfer or a bill of sale. Maybe you've got some cash, maybe you've got some coins. You write a will saying everything that I own all the residue of my property, which would exclude, I direct to be paid over to the... RVD Payton, irrevocable now, testamentary trust. And then you distribute it. So you're not avoiding the writing a trust instrument. You're not avoiding the necessity of taking a death certificate and an affidavit of intestate, A, errors, and a valid will to the courthouse. It's just another part of it. It may be simpler, but what's different from that in writing a will, honestly? A trust can't execute a transfer on death deed. Transfer on death deed, neither can a limited liability company. People put all their real estate in a single member limited liability company without going the next step and having some sort of operating agreement.

that distributes it and all you've got is real estate sitting in a company that, how do you get it out? Right. So folks will do it on their own, download a trust instrument from the internet. Well, I want my house to go in there, but they don't go write a deed for the house and convey it to the trust. There's nothing there. Or, sometimes even worse, create a trust where the only asset is a house. That's it. And you give the house to a child. Well, what do you do with the house? Well, you live in it, but what else do you do with it? You maintain it. You insure it. You pay taxes on it. You have utilities for it. Well, wait a minute. Where's that money coming from? Well, there isn't any money. A house doesn't generate money if you use it to live in. So you've just created what's called a non-economic trust. a trust that has no economic benefit. Now, those can be dissolved, but guess what? You have to hire a lawyer, or you can do it yourself if you can find your way to the Canal County Courthouse or whatever courthouse the property's located in, and you know to look in the code and find the statutory procedure for the dissolution of a non-economic trust. Then you can get the property back and sell it, right? But... I mean, I've been alive long enough that I tell folks, you know, if you'd like to have a trust, if that's something you think you're absolutely interested in, and you've heard about it in Reader's Digest, or you've seen it on TV. Other than the circumstances in which I find a trust is completely appropriate, you really need to see somebody else because I think it's just the creation of another entity. I recommend to almost everyone, well, to everyone that comes in the honest, look, the best thing that can happen to this will is that you put it in a safe place and you never probate it, right? Because you don't have to. You put your house, it's held jointly with you and your spouse, or it's governed by a transfer on death deed, you designate beneficiaries on it. You can put every account at a bank with a POD so that the bank will pay that account on your death to another party. It doesn't give anyone your money, doesn't give them access to your money, like a joint account does. You can do the same thing with the title of your vehicles. What you have left, your personal facts, jewelry, things of value, you can simply gift away in your lifetime. Give somebody a note and say, here's what I want to do. That's not a binding testamentary instrument, but have a valid simple will. You may need to probate it sometime. I've been involved in several instances where folks, you know, they didn't need to probate. So they didn't. They may have gone down and lodged the will with the fiduciary office, which you can do. And then two years later, somebody calls a landman from Texas calls us, hey, your husband, who's now deceased, owned a one-eighth interest in 40 acres up in Gilmer County through his great-great-grandfather, who you never heard of. And we'd like to lease it sometimes for a lot of money. Well, how are you going to do that? Well, now you've got to go probate the will.

appraise the property, file the appraisement, let the claims run. But that's how you can transfer the... You need it then. If you don't need it, you don't need it. I just... I mean, I certainly, I mean, I've seen a lot lately of these universal wills that are downloaded from the Internet. They're really, really bad. The ones that I've seen, they have so many, so much verbiage. It's confusing. People put names in the wrong space. They check the wrong box. It's obviously, you know, somebody who's a beneficiary signs as a witness, all the sorts of things. You know, they take it to the courthouse because they think, oh, happy me. I'm going to get all of Aunt Mamie's property. And someone says, well, no, you're not. Actually, Aunt Mamie is a strange son. who left the house because he beat her up and stole her money to buy drugs, but now lives in Colorado. That's her sole heir, and he gets it. So, I just, you know, the idea that the term probate should be a feared term that's really expensive. First of all, there is no inheritance tax in West Virginia. None. There is no, effectively, there's no U.S. estate tax. Federal estate tax only. kicks in well over $10 million in net estate assets. I've never handled it. I've handled a fewest to help people with the states that were worth more than that, but it wasn't with regard. It was questions about a surviving spouse's interest or litigation over maybe an income interest. But I would doubt, well, Could there be 10 folks in West Virginia? Maybe John Racy, who owns this station, but he's a resident of Florida now, so he would be, you know, I'm sure Racy's worth a billion, probably. But that's a completely different universe. That's not where we live. The rules that apply to 99.99% of the folks that we deal with are no inheritance tax, no estate tax, about $2,000 in legal fees. to do the probate and do it correctly and close the estate out, including, here's another little kicker. Suppose somebody has property in another county, a camp in Polka Honest County or Mineral Interests in Marshall County. Those all need to be appraised, even though the state might be in Putnam County. Because at the end of the day, you have to take all those papers to the other county and record them to verify your title. where you're going to get bad title. And 20 years from now, you get ready to sell. And the question is, well, how did you get this? Well, I inherited it from my dad. Well, there's no record here. So then you've got to go back, reopen the estate, file an amended appraisment. Now, the fiduciary office doesn't usually charge. They're about $20 to reopen an estate and file an amended appraisment. But unless you're prepared to do that yourself, there's another $1,000 in attorney's fee. I think you're better off. I mean, my recommendation is at least talk to a lawyer. You mean, you can talk to us. I tell people all the time, you know, you don't need me right here. You can do this because there's just not enough, not much here. I don't say that disparagingly, but if all the assets were jointly held and they're covered by non-probate beneficiary designations, if anything comes up in the future, call me. Otherwise, you're good to go.

Now, having said that, let's take a break because there's one other... Want to get into that? Okay, take a break and then get into the rest of it? Yeah, there's one other really important thing that I want to talk about. Okay, okay. We wanted to find a natural place there. We could go ahead and do that. If you have any questions for Harvey Payton, you're more than welcome to get a hold of us. Text line numbers 304-935-505-0-08. Is that right? No, that's the network number. I'm sorry. No, that was right. I've been doing two shows this week, and I have text numbers all over the place. It's right the first time. 304-9355-0-0-0-0-0-3-5-0-0-0. You can give us a call this morning. 304-3-5-58-58. Remember, it's an auto-cue, so we'll put your right on hold, and then we'll get your right on the air if you call in. You're more than welcome to do that. You're more than welcome to talk to Harvey Payton-Lawfirm from the Pathan Lawfirm.com. We'll give you more information when we come back. You're listening to Ask the Lawyer this morning with Hart. Harvey Payton from the Peyton Law Firm. I'm Dale Cooper, and this is 580WCHS, the voice of Charleston. Why do so many West Virginians choose the Peyton law firm after an injury? Because Tom and Harvey Payton are from here, and they fight for their neighbors every day. When you're dealing with an injury claim, you need experience, straight answers, and results you can trust. Don't let insurance companies or out-of-state firms push you around. Call 755-556 or visit Patentlawfirm.com. The attorneys referenced in this ad are lifelong residents and our license to practice law in the state of West Virginia. Adventure is... Boundless. Adventure is a journey that never ceases. When you hit the open road or the open water, time stops and adventure begins. From anchors away to kickstands up, a continuous tradition of adventure is the spirit that drives Trojan Landing Marine and Power Sports, featuring Segway side by sides for you, a co-pilot and a compass to embark on endless adventure. Discover more at Trojan Landing.com or visit Trojan Landing Marine and Power Sports in Charleston today.

Now let's check in on traffic from the 580 WCHS Studio. Good morning. Here's your traffic update. A vehicle crash on West Virginia 622 at 5442 Big Tyler Road. A pothole in the roadway on U.S. 60, McCorkal Avenue, and Smith Street. Maintenance on I-77 South at Mile Marker 85 to Mile Marker 85.5. That's at Shillian. And in Boone County, a tree in the roadway on West Virginia 17 at Spruce Laurel Road. Drive safely. I'm Chappell in the WCHS Network Traffic Studio. Thank you.

You're listening to Ask the Lawyer, 580WCHS, the voice for Charles, and Harvey Payton is in studio with us this morning. Give us a call 304, 34558-3-5-58-58. You can find out more about the Payton Lawfirm online, Pathanlawfirm.com, Payton-Lawfirm.com in Nitro, West Virginia, their phone number, 304-7555-56, 3-5-55-6. You can still get on with us this morning, though, at 304-3-45-58-8. We're talking, Harvey's been talking a lot this morning about, well, maybe the... unnecessary creation of trusts and with things that happened with your estate after you pass and everything. And this is a highly important stuff. We got a lot of questions on this, even when shows where, like our financial show that we do and the insurance show, we do, different shows like this have different angles that they have to approach on this. And Harvey's addressing an issue right now where I think maybe a social media trend has taken off where people suggest. sort of gamifying trusts to avoid certain situations? I'm sure it is a social media trend in it, or, and of course, I don't know. What you see on social media is governed by an algorithm that shows you things that that algorithm dictates to the, the nether world that floats around out there, what you may be interested in. So if you happen to go online and you do a search about estate planning or then you're going to see a lot of things. I don't, I mean, I don't do that because that's what I do for living. I don't know. I mean, I look at things about sports and politics. Yeah, sure. Right. But, you know, you just need to be. Don't be afraid. I mean, the thing that I tell people, don't be afraid. Don't be afraid of probate. It's nothing to fear. It's just a process. It's not real expensive. I tell a lot of folks, look, if you can, if you ordered a bicycle for your child when they were young, and you can, and it came unassembled, and you can. read the instructions, empty the box, sort out the parts, and put it together before Santa Claus comes, you can do the paperwork. Required to close out a very, very simple estate. Now, that doesn't mean you should because there are things that you miss. Things get put on the wrong place. But, you know, you can take some advice. You know, you pay a lawyer for some additional advice, and things will go smoothly. And in about six to eight months after your loved one departed, the thing will be closed out, and the real estate will be transferred, and the assets will be free and clear. Any claims will be paid, and you move on. It's difficult to move on, you know, if you've lost somebody. But... what lawyers get paid to do is to worry about things you don't want to worry about yourself or things that you just don't want to do. A lot of people just don't want to handle the state of a deceased loved one. I mean, it's really somewhat difficult. But one thing you need to really pay attention to, and this is something to be concerned about. If you have a...

tax-deferred retirement account. I'm talking about an IRA 401K. It is crucially important that you talk to your financial advisor or with a plan administrator to be sure that the beneficiary designations on that plan are up to date. You know, the way that the plans work, you know, it's tax deferred so that if you put $50,000 in an IRA, you know, when you're 39, it benefits, earnings, and the value increases, but there are no taxes on that. You know, capital gains on every transaction. It accrues value. But then when you're 70 years old, 70 and a half, I think you have to start withdrawing what are called mandatory minimum distributions, which are taxable and are theoretically axiarily Gill computed so that during your expected lifetime you will actually pay taxes on all of the tax-free accumulation. Now, that's not... True. People are living longer now. And, you know, if you, but if you pass away, you can leave a beneficiary. The beneficiary steps into your place. The account continues tax deferred. The beneficiary will have to start taking the mandatory minimum distributions when you would have. But in theory, they're going to be older and in a lower tax bracket as well. However, if I had this a week ago, a lady asked me about her retirement account, well, I made my mother the beneficiary because the retirement account was opened 30 years ago. Well, my mother's deceased. Oh, my. Well, should I just make my estate the beneficiary? No. If in a situation like that and I've seen it happen, Unfortunately, if your retirement account, your tax-deferred savings are paid to your estate, your estate is a separate entity, and that's what the company will do, they'll just write a check for the whole amount to the estate of John Doe. And you as a personal representative have to deposit it. Well, in the eyes of the Internal Revenue Service, That's just as if you had cashed that entire account that day, and it's all taxable. And what's the big difference is for an estate, the maximum tax rate kicks in after $12,500. So everything over $12,500 is going to be taxed at their... ordinary income rate with 36.9%. Well, whatever the rate is, it's going to be the maximum rate, 36.9%. And I've had the unfortunate circumstance of having to tell clients, you need to write a check for $85,000, pay the tax out of this money, which can be avoided by, that's not a bad idea annually, just to think about, talk to your spouse, talk to your kids, talk to your lawyer.

What, here's the situation I'm in. What should I do? Well, call Ed Stike, right? But I actually have a lot of, they must listen to me on the radio and listen to Ed Syke. Because they have him as an advisor call. He'll tell you how to do this. That's the power of radio. Right. And you can, you know, you can a designated beneficiary to alternates. You can designate a beneficiary fractionally. If you have four children, you can allocate one-fourth, one-fourth, one-fourth, one-fourth, one-fourth, and they'll have the option to either take it out in cash, pay the tax, or roll it into another plan in their name. But it's very, very important if you have any sort of tax-deferred savings that you make sure the beneficiary is up today. That's not governed by your will. Your will has no control over that. It has no control over life insurance. No control over joint bank accounts. No control over transfer on death deeds. No control over payable on death certificates of deposit or saving certificates. Your will doesn't speak to that. It only speaks to your probate estate and that is what you own in your own name individually at the time of your death. Now, obviously, and a lot of times that may only be a vehicle. It's a little bit of trouble. You're going to transfer the title of a vehicle. You've got to call and make an appointment, go to DMV, put two names on the title. You can sign the title, give it to your child, make it, take it, and change it. When something happens to you, I don't think anybody's ever questioned that. But the important thing is, Don't rely on social media. But, yeah, if you'd like to talk more about that, you can go to Patentlawfirm.com and send an email, which only comes to me or Tom, and just say, hey, I'd like to discuss something. I've got an estate issue. Or you can call the office 304-755-56, and you'll get our intake department, which is me. And don't be afraid to call a lawyer. We're human beings. We're here to help. We're here to help you in all regards, accidents or injuries. If you want to talk to an old person about issues that affect old people, then I'm your person. How's that? I don't know when I'll be back. I'm sure to be here next week. It's a compelling case, though, for Harvey Payton at the Peyton Law Firm. I've been on the radio here for decades, and he can help you out. Give the Peyton Lawfirm a call 304-75-56. Payton Lawfirm.com. Dave Allen's up next. Thanks for listening to 580WCHS, the voice of Charleston.

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