Happy Halloween -- Silliness for the Day

October 31st, Halloween, and I give you a YouTube treat -- I'm My Own Grandpa. The song brought me many laughs back in law school taking T&E from Prof. Howie Erlanger. Enjoy the laugh.

AB 235 and Possible Changes for Wisconsin's Prenuptial Agreements

According to Capital Times Reporter, Steve Elbow, changes may be coming for Wisconsin's prenuptial agreements. A prenup, or post-nup in some cases, is a contract between a husband and wife about how property shall be classified during marriage as well as at death and or divorce. They are commonly used in the case of blended families, when their are assets and children that pre-date the marriages.

According to Elbow's report, State Rep. Joel Kleefisch is proposing changes so that judges cannot alter an agreement even if a spouse failed to disclose asset or debt information, if the agreement was coerced, or deemed "unfair" by the judge. The proposal, AB 235, is not without opposition. The bill was met with concern by other members, all attorneys, who clearly feel contract law calls for a remedy if the agreement was entered falsely.

I will be monitoring this legislation and will post updates as needed.

Funeral Consumer Alliance

Until recently, I had never heard of the Funeral Consumer Alliance. However, after reading Final Rights: Reclaiming the American Way of Death by Joshua Slocum and Lisa Carlson, the organization is now bookmarked on my web browser. FCA is a non-profit organization with the goal of protecting consumer's rights in selecting a funeral. After reading the book, it is apparent that those rights need to be protected. Slocum states that 90 percent of consumers simply do not shop around when purchasing a funeral. Moreover, he states that a person plans, on average, two funerals in his or her lifetime. Without a lot of practice, making pricey mistakes is easy. If you are planning for your own or a loved ones funeral, I highly encourage you to educate yourself using the FCA's web site.

A Family Heirloom: A Teddy Bear From An Old Mink Coat

Working with a couple last week that are waiting the arrival of their first child, they told me about a baby gift I had never heard of before. One of their parents had taken an old mink coat to a company here in Wisconsin, and had it transformed into a lovely teddy bear for the baby due to arrive later this year.

A quick Google search turned up the company, Stadler Furs. What an innovative idea! Family heirlooms are always a tricky subject for families. This proves to be a lovely way to give an old item new life, and create something that can stay with the family for generations.

I'll have to mention it to my mom, although I'm not sure she is ready to part with her fur. She never wears it, but I'm not sure that means she is ready to turn it into a bear....but maybe.

Self-Publishing Meets Today's Seniors

Two weekends ago I came across an interesting article detailing how today's tech savvy seniors are turning to self-publishing as a means of passing on their stories and values. According to the article, of the 1.1 million users of the self-publishing site Lulu.com, 17 percent are seniors. Passing on wisdom is not new among the world's elders, but the availability of inexpensive technology allows them to take on an entirely new approach.

Thinking back to my middle school years I remember doing a family tree project and recording my grandparents voices on tape. Oh how times have changed. I'd love to have a book from my elders. How about you?

Does Your Personal Representative Know Where To Find Your Will?

A will is a guide for the probate court on how you want your probate estate distributed, who should serve as personal representative, and if you have minor children it nominates a guardian. If you take the time and spend the money to complete a will, make certain that it can be found after your death. If not, you've just died without a will!

Last week I learned that an elderly couple I assisted some years ago had both died. Their seven grieving children descended upon the house and were unable to find the wills. I received a panicked call. We needed the original to file with the court, and I encouraged them to look again, this time armed with a description of how I package final papers. To their relief, both wills were found.

Grieving a loved one is hard enough, don't make it any harder by keeping your will so safe that no one can find it. I always encourage clients to tell their personal representative the location of a will, but not the specific contents of the document -- that is private.

As always, I recommend you consult with an estate planning and probate attorney in your home state for legal advice....a blog post is not legal advice.

Tithing Down At Main Stream Churches

This news blurb states that tithing (offering to a church) is down to its lowest level in the past forty years; in 2009, mainline Protestants gave 2.38 percent of their salary to churches. The article also points out that of offerings made to churches, most go to cover building and operating costs. Only 0.34 percent go to benevolent causes outside of the church. This represents half the level given in 1968 to charitable causes.

I found this article interesting because my husband and I often discuss the "needs" of our church, the First Unitarian Society of Madison. We have an amazing new addition to a Frank Lloyd Wright Building. But an equally amazing mortgage. There is much discussion of how to close the budget gap, but not nearly as much conversation about what UUs can do in the community. Apparently FUS is not alone.

Stress and Cardiac Disease

Twenty years ago this fall, at the age of 47, my mother had a heart attack. What followed was twenty years of tests, medicines, diets, procedures, and countless doctor's visits. Over the two decades we've learned that her heart has 3 failure modes. Thanks to advances in cardiac research and care, she is able to enjoy time with my two young children.

Earlier this week I took her to her annual cardiac appointment. And I noticed something different than when we first started going. From the doctors to nurses to fliers on the wall, the message was clear -- manage your stress to have a healthy heart. In the past I'd seen and heard information about the right diet, warning signs, walk every day. But this week it seemed that the overarching message was to manage stress. Diet and exercise play a part in it, but so does mindfulness, meditation, and battling isolation.

A course announced on one flier is titled "Skills For A Happy Heart: Learning mind-body skill helpful in the management of cardiovascular disease". It will be held at UW Health, 621 Science Dr., Madison, Wisconsin, Mondays from 11-12 starting November 7th through December 12th.

This is just an observation from the daughter of a cardiac patient. I also happen to be an estate planning and probate attorney who sees illness and death on a daily basis. Have others observed this change? Is it broader than the University of Wisconsin Cardiac Care Unit?

Vitamins - Are They As Good For You As You Think?

Last Friday I read this article in the Wisconsin State Journal that reviews two recent studies that question whether vitamin supplements are as good for people as they think. One concern is that people are now getting too many vitamins because processed foods have added vitamins as well. Too much a of a good thing is not necessarily healthy. A second concern is that people who take large doses of a specific vitamin may actually be at a greater risk of disease.

While reading the article, passages from the works of Michael Pollan came to mind. He is a critic of processed foods as well as methods to "enhance" foods with vitamins that do not naturally occur in the food. His claim can be summed up with "if your great grandmother would not recognize it as a food, then don't eat it". As with the article in the paper, the thought is that a healthy diet will give you the entire array of vitamins, minerals, etc. Those cited as benefiting from supplements are:

• postmenopausal women;
• women planning a pregnancy or currently pregnant;
• people over 50; and
• breastfeed infants.

Given my line of work, I focus on healthy habits as much as possible when I am not writing estate plans or handling a probate. As a mother of young children I was a bit surprised in reading the article. My 3 year old takes a multi-vitamin every morning. Does he need it? Do I? I'll be following up with our doctor soon.

"Leave A Legacy" Campaign

This was delightful news to read. A planned giving council in Ohio is running a "Leave A Legacy" campaign, encouraging area residents to name a church, educational institution or non-profit as a beneficiary of a non-probate asset. What I find refreshing about this is two things. One, they are focusing on average citizens, not the "wealthy". And two, they are asking people to do an easy, low if not no-cost change...putting a charitable cause on a beneficiary form.

When a person mentions a charity in a will or trust, the cost goesv up. First, the person has to pay an attorney to either create or update an estate plan. And second, the asset will be subject to a probate fee (varies state to state), which will decrease the assets available for distribution.

Straight forward, easy, and inexpensive. Everyone can be a philanthropist!

Digital Inheritance

This article from the UK caught my attention; it claims that Brittons are leaving passwords in their wills. What I find shocking is that the article does not address the implications of putting passwords into a will. Here in the US a will, once filed, becomes a public record. Anyone can go the courthouse and review it. Maybe they are not public in the UK. But I'd still be hesitant to put a password into a document that will be filed and read by countless people.

When I work with clients I recommend that they put all passwords on a single sheet of paper, kept safe at home in a fire proof box. That way it is accessible if needed. Passwords for the following are important to log:

• banking accounts;
• retirement accounts;
• credit cards;
• on-line bills;
• social media; and
• digital media stored on the cloud.

When drafting a will, one should give thought to their digital assets. This would include:

• web domains;
• intellectual property;
• images and video;
• music; and
• software.

The rights to these assets would be passed in a will since they are a form of probate property.

Remember, a blog is not legal advice. It is designed to share thoughts and ideas. Please consult a lawyer in your state for specific legal advice.

How To Select A Guardian For Minor Children

Several years ago I wrote an article on how to select a guardian for your child(ren). The publication is now defunct and the web site no longer running. It is an article I point clients to at least once a week, so I am going to re-post it here today. It was written for a January publication, hence the references to New Years resolution. No matter what time of year, it is a valuable piece with sound information.

It is a new year, and like most people you may have a to-do list featuring your New Year’s resolutions. Whether you are an expectant or new parent or a seasoned veteran with teenagers, you may want to add “Nominate a Guardian for my Child” to your list.

What is a guardian? A guardian becomes the substitute parent for a child and makes day-to-day decisions a parent would make if the unthinkable happens to both parents. Every minor must have a guardian, and should the unthinkable happen a court will appoint someone to fill the parents’ shoes.

Why nominate a guardian? If you do not nominate a guardian, then the potential exists for various family and friends to seek guardianship over your child. The uncertainty, legal costs, and possible contentious atmosphere surrounding such an event would be less than ideal. By nominating a guardian for your child you not only ensure that your wishes will be considered by the judge, but you also allow for a more smooth transition following a tragic event in the life of your child and surviving family and friends.

Who should you nominate? Thinking of someone who will step into your shoes is almost an unbearable thought; many of my clients tear-up when discussing the issue with me. When working through this emotional area I find that it helps to have some concrete questions to answer. For example:

· Who has a close bond with your child;

· Who is in good health to raise your child;

· Who shares your family’s values in terms of religion and education;

· Who could realistically take on the financial responsibility of raising your child;

· Who lives in an area where you would want your child raised; and

· Who does your child want to live with (assuming they are old enough to talk about this issue).

How do you nominate a guardian? Many clients I have worked with believe that having a godparent is sufficient. It is not. A will is the only legal form of nominating a guardian for your minor child. A Wisconsin will can be completed by working with an estate planning attorney or by completing a basic Wisconsin will that is available from the State Law Library and other establishments. One important consideration in deciding on whether to work with an attorney is whether you would like to create a will that nominates a guardian and also places your assets into a trust fund for the benefit of your child; with no trust, a child would gain possession of the assets at age 18. Do not underestimate your assets; a house, retirement account, and life insurance can add up quickly.

What should you tell the guardian you’ve nominated? First, before nominating anyone in your will you should ask them if they would like to serve as a guardian. Urge them to be honest with you because you want your child to be placed in the most supportive and nurturing environment possible. Second, I advise all of my clients with minor children to leave a letter to the guardian expressing his or her wishes for the child’s upbringing. For example, how much should be spent on holiday and birthday gifts; vacations that should be taken at specific ages or to special places in the world; and preferences for the continuation of sporting or music abilities of the child.

If you are a parent, you have without doubt experienced a moment of wonder, what would happen if I were not here? Nominating a guardian is a process by which you can answer that question and diminish the twinge of anxiety in the years ahead.

Who's The Client In A Probate?

Probates pose an interesting situation for attorneys because they can generate three different "clients" to represent:

1. represent the estate itself;
2. represent the personal representative in his/her role in the probate; and
3. represent individuals who have an interest in the estate.

Unlike lawyers on TV, real life lawyers can have only one client. To do otherwise would create a conflict of interest. The November 2009 edition of Wisconsin Lawyer details the reprimand of a Wisconsin attorney who attempted to represent too many clients in one probate.

In my experience, a primary task of estate planning attorneys is to educate clients. One topic that is often overlooked is who is the actual client. Remember, there should only be one, and that guarantees each client receives unbiased advice. It may sound nice to have one attorney answer all the questions about a loved ones death, but it is not wise.

Patient Confidentiality and Powers of Attorney?

How do powers of attorney for health care and client confidentiality co-exist? This question came to my mind while reading an article in the Wisconsin State Journal over the weekend. Apparently a Middleton man is suing his physician and others after the doctor called his mother (following surgery) and disclosed the patient was HIV positive. Asserting the doctor violated state law, the patient is now suing. What I find interesting is that the article does not mention whether the man's mother was operating with authority established in a power of attorney for health care. If so, it raises the question of whether a patient maintains confidentiality....I'll be watching this case and looking at my own POAs more closely.

When Parents Die, Don't Forget The Cemetery Plots

Last week I opened a new probate file. Three adult children came to my office for assistance in the probate of their mother's estate. Their father had died a few back, and now they needed help transferring the assets. One asset came up that they would have overlooked, as I'm certain many do....the rights to cemetery plots.

It turns out that their parents had purchased five plots, and now only two were used. What will happen to the remaining three plots? A quick call to the cemetery sexton, and we had an answer. The children will decide who will get a plot and we'll send a letter to the sexton so that new easements can be drafted.

It was my own personal experience that led me to inquire about extra plots; my great-grandparents had purchased numerous plots in the small Wisconsin town were my mother was raised. Some remain open, and have passed from one generation to the next. It is an asset often forgotten about in traditional probate matters.

Remember, reading a blog post is not the same as seeking legal advice. Please consult with an attorney before taking action.

Tony Curtis' Estate Plan

Recently I was reading a Forbes' article on the brewing family dispute in the estate of Tony Curtis. Apparently he changed his will several months before his death, and in that change left everything to his 5th wife and explicitly stated he was leaving nothing to his five children. That fact does not shock me, I have clients who do the exact same thing. It is relatively common in blended families. What shocks me is Mr. Curtis was either not advised or did not take the advice of his attorney to explain why they were not mentioned in the will. Would an explanation have prevented the brewing arguments in court that his will was changed under duress or fraud? Maybe not, but possibly. Parents are not required to leave anything to children, and stating why can go along way. If not, emotions will run high. Especially when the 5th wife auctions off hundreds of personal items, and gives none to the children.

A blog is not a replacement for an attorney. And if you hire an attorney, you may not like what they suggest (i.e. writing a letter of explanation) but it usually is given with the intent to minimize family feuds.

Joint Ownership Between Generations

It's a typical scenario. Elder in a family starts thinking about his/her death and his/her property. They want to avoid probate, and do not want to pay for an attorney. So, operating on what they think is wise, they start adding the name of a younger person to the deed or title. Life goes on, they die, and then the problems start. And they usually end up in the office of an attorney, one of the things the elder had hoped to avoid. And in some cases, the elder may end up in an attorney's office before dying. Why? The younger person that was added to the title is now bankrupt, divorced, being sued, or died themselves....and what happens to the property then? The answer is usually not what the elder wants to hear.

Forbes addressed this issue well, and the Wills, Trusts, and Estates Prof Blog offered a concise summary. Read more by clicking on the links.

I cannot emphasize enough how important it is to hire a lawyer to consult on estate planning measures. A blog is not legal advice, it is food for thought.

Want a FREE Bottle of Red Wine?

Dear Readers,

Once again I am participating in the American Heart Walk to raise funds for education and research. My original goal of $380 ($10 for each year of age I am on walk day) has been met! I want to see how much I can raise, and am now offering a FREE bottle of red wine. I will draw one name from the list of all my supporters walk day. Want to try to win? You can sponsor me on-line(requires a minimum of $25) or post a comment and I'll get you information on where to send a check. Deadline is 7am this Saturday, October 8th.

Help me raise funds. If not for the advances in cardiac care, my mother never would have lived to meet her grandchildren. And that is why I walk, and why this is the only cause I solicit for.

Thanks!

Steve Jobs, Feb. 24, 1955 - Oct. 5, 2011

Twitter had a brief "buckle" in its processing yesterday under the weight of tweets related to the death of Steve Jobs, who died October 5th, 2011. One I read said "few people can say they've changed the world." -Dave Ramsey. I couldn't agree more. The NY Times has a lovely article chronicling the outpouring of grief and tributes that began to surface Wednesday evening. I'm saddened to learn that pancreatic cancer has claimed yet another amazing human being.

Wisconsin Historical Society Receives $500,000 Gift

According to the Capital Times, the Wisconsin Historical Society has been awarded a gift of $500,000 from the Jeffris Family Foundation. The gift is intended to be used for official recognition of the State's historical treasures.

I always enjoy reading about donations and gifts to non-profits. However, I always wonder if large gifts like these dissuade others from making more modest gifts?

2011 Edition of Gustafson Law Office's News letter

Being mailed this week, my 2011 edition of my newsletter. Click here to read on-line. Updates on tax issues, cell phones in an emergency, and ethical wills are included.

If you have story ides for the 2012 newsletter, or this blog, please submit a comment.

Happy reading!

What is a Codicil

Codicil -- it's a fancy legal word for amendment. If you have an existing will that needs a minor update for your nomination of personal representative, guardian, percentage bequeathed, etc. -- a codicil is a term you need to know. Executed in the same manner as a will, it is the legal way to change an element within your existing will.

This blog post is not meant to convey legal advice; it is always best to consult with an attorney in your state.