A Guardian For Minor Children, Not Guardians

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Has the stork made a visit to your home?  Whether the visit was earlier this year or 14 years ago, as a parent you have undoubtedly given some thought to naming a guardian for your minor children.  And I'd bet money you've thought about what couple would make good guardians.  Great, now ask yourself "if they did have guardianship of my child(ren) and got divorced, which person would I want to have my child(ren)."  That is the person I would name.   Yes, this stuff happens.  Parents die.  Guardianship is established.  The new family unit suffers a divorce.  Custody disputes arise.  Worse case scenario?  Sure, but that doesn't mean it won't happen.  Attorneys are trained to see the worse case scenario and plan accordingly.

An Email That Made Me Cringe

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Daily I find emails in my in-box addressed to "estate planning professional".  Most are trying to get me to attend a continuing legal education seminar or purchase on-line research tools.  Sadly, some are peddling marketing tools.  One such email arrived earlier this month, and I cringed upon reading it.

Greetings Estate Planning Professional,

Take advantage of our end of the month offer!  Our portal has opened for qualified estate planners & probate professionals that are interested in capturing the lucrative bereavement market.  See why over 500 of your peers have choosen to do business with our firm.

Ask yourself:

Is your firm receiving new clients on a regular basis?  If you are unsure, we can help.  Here are a few things to consider:...

"The lucrative bereavement market?  I highlighted it for your reading.  Beware.  Upon the death of a loved one, companies are lining up to tap into your pockets.  I've read that on average a person will plan one or two funerals over a lifetime.  That does not add up to a lot of experience or knowledge, and people can spend tens of thousands of dollars in a few hours.  Planning ahead allows you to take control.  Put your wishes in writing.  Use a form to appoint who should make arrangements (Wisconsin's form is here).


This email was trying to get me to pay a fee to a research engine, giving my name to families with a death that need a probate attorney.  I've deleted the message.  My advertising consists of providing quality service to my clients and speaking at seminars.  From that comes referrals and return clients.  I counsel families, I don't target a bereavement market.  Ahhh, the things that pass before an attorney's eyes during the day.

"My Stuff" Is Not A Legal Definition

At seminars I routinely joke that one role of being an attorney is to translate law into English.  The converse of that statement is another role is to translate English into law.  I have to take my client's wishes and put it into a legally recognizable will.

Case in point, turning the state "give my stuff to my kids".  What constitutes "my stuff"?  Here is how the conversation should go:

Client: Give my stuff to my kids.
Attorney: Are there any specific items you would like to distribute?  For example, a wedding ring, piano, etc?
Client:  Yes, give my piano to my daughter.
Attorney:   Which piano, can you describe it?  What is your daughter's name.

Image credit:  2012 - taken by author, M. Gustafson Gervasi.  Features the "new" family piano and her daughter.

And so on and so on.  Be specific.  More specific than you ever are (unless you are an attorney).  Give the level of detail you would have to give if you were telling a friend where to retrieve an item in your house.  In fact, that would be a great way to figure out how specific you need to be when making this type of distribution.

Be specific, "my stuff" is not legalise.

Family Says Death Unexpected....

Last week I found myself once again climbing Bascom Hill to the University of Wisconsin Law School.  Learning was on my agenda. The class was not for a semester, but part of the week long 41st Annual Estate Planning in Depth (ALI-ABA).  An entertaining lawyer named Eric A. Manterfield (Indiana) started the day off with an amusing news report.

"Worlds oldest person, 118 Russian man dies.  Family says death unexpected."

Unexpected?  Death is something none of us will escape.  There is no time better than the present to put affairs in order.  And because death is often an event stretched out over days, weeks or months, consider the importance of creating powers of attorney, both for health care as well as finance.

Sadly I left the session without being able to ask my question....did the 118 man have a will?   A follow-up email will be sent to the speaker.

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5 Reasons I'm Running the Capital City 5K

What will you be doing the evening of Saturday, July 28th?  I know what I'll be doing.  Running in my second 5k of the year -- the Capital City 5K for Organ, Tissue and Eye Donation.  Here are five reasons why I've signed up:

1. Transplants save lives.  Friends as well as clients of mine are living proof;
2. Money and awareness mean more transplants, and a 5k raises both;
3. Scheduling a timed run forces me to put daily runs on my calendar, and running neutralizes the stress of being a solo-practitioner;
4. Who can say no to a twilight run along a lake in Madison?; and
5. It makes for a great "date night" with my husband, who will be running along with me.

Does a 5k seem daunting to you?  Would dinner and drinks make for a better date night?  Skeptical about what good can come from a few hundred runners and walkers in south central Wisconsin?  Negative thoughts like these are pushed from my mind when my phone rings.  Too often the person on the other end has just received a fatal cancer diagnosis or lost a loved one to disease.  Life is short.  Prevention is powerful.  Dollars add up to make a difference in the lives of others.  Run or walk a 5k this summer.  Enjoy life, do what you can to prolong it, and while you are hear raise money and awareness for good causes.  At least that is the motto of this estate planning and probate attorney.

Book Recommendation: The End of Illness

Being a bookworm and an attorney often go hand in hand.  Adolescents who love reading often take an academic path laden with words. That was me.  As a child books were my dearest possessions.  College, grad school and finally law school brought me endless texts to read.  Even though the years of tuition and exams have ended, my love of reading remains.

Something about the combination of my focus area (estate planning and probate), my parents poor health, and the fact I'm the parent of two young children results in many of the books on my bedside table being about health.  So when I read a short review of The End of Illness by David B. Agus, MD in my USC Alumni magazine, I requested a copy from the library.  Apparently many others had too because it was months before I got an email saying it was available.

Once I picked it up I couldn't put it town.  It offers serious science, public policy, and action points, making it one of the most powerful books I've ever read.  The topics are too numerous for me to cover in one post.  And the book so compelling, I purchased a copy for my collection.  I've been recommending it to everyone, including the women who cleaned my teeth last week.  Here are two of the major points I took from the book:

1. Evolution does not care about us much once we reach our 40s and beyond -- our child bearing years are behind us.  Rates of cancer and other age related illnesses increase steadily;
2. Health care reform begins with the individual; and
3. Prevention is key.  Once a disease settles in, management of it is likely the primary path you'll be on.

Evolution doesn't care about me once I'm in my 40s?  I'll be 39 this fall, and I have little kids.  Really little kids.  They will turn 4 and 2 later this summer.  Screw evolution, my kids need their Mama, and their Mama wants many, many years raising kids.  Prevention is the key -- that sounds reasonable.  Moreover, I can take action.  

With Agus' words echoing in my head I opted to bike to my office one day last week.  My last meeting of the night was short, and I found myself home earlier than expected.  Even though I had biked to work, I opted to take a short run as well before taking the parenting reins from my husband.   I've seen one too many probates in which a person younger than me has lost a battle with cancer.   Exercise may help me keep that battle at bay, and so I ran.

Taking A Turn -- Illness, Death and Taxes, a Lawyers View

Today's date, June 21st, marks the most significant life event for me, the day I married my husband.  So, it seems fitting that today, on the 21st of June, that I take this blog in a new direction.  Until now the posts have been informative, educational, and at times funny or sad.  Useful, yes, I'm certain that most have been useful.  But I have felt that something was missing.  That something was me.   There was not enough "Melinda" in the posts.  There were okay, but not the "great" I aim for.

Going forward from today the posts offer my personal thoughts and observations on illness, death and taxes.  Being an estate planning and probate attorney means I view life through a different lens.   I'd like you to see what I see.  Enjoy the turn in the road I am taking.

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Probate and Survivorship

To inherit from an estate, one must survive the decedent.  That seems straightforward enough, yet it is not always the case.

For example:  Abigail, a widow, aged 55 is driving in the car with her 22 year old daughter Bethany, her only child.  An accident occurs.  Abigail dies on the scene, Bethany dies 6 days later from injuries suffered in the accident.  Question - what happens to the estate.  The answer is it depends.  Yes, don't you just love an attorney! There are several issues that need to be examined:

1. Did Abigail have a will?  If yes, we turn to the will to see what it says.  If not, state statute will govern distribution.  If there were a will did she name a partner?  A sibling?  Her daughter?
2. What period of survivorship is required?  Under Wisconsin law and no will, the time frame is 120 hours, which is 5 days.  Typical wills call for survivorship of 90 days.  If Abigail had a will with this clause, her daughter would be considered predeceased and the estate would pass to her "plan b" for distribution.  If there were no will and it was Wisconsin, Bethany would be deemed to have survived, and her inheritance would go into her estate (husband, children, partner, etc.).

Sadly situations like this happen all the time.  And it underscores how important it is to think through who will inherit if your first designation does not survive you.  Remember, a blog is not an attorney.  Please consult one in your state for specifics about your situation.  And thanks for reading.

DOMA and Federal Estate Taxes

It appears that a federal judge has found the Defense of Marriage Act (DOMA) unconstitutional because it prevented a widow from a New York same-sex marriage from receiving a spousal credit upon the death of her spouse.  Broken down this means a federal judge in New York stated that a surviving spouse from a same-sex marriage, which is a legal marriage under state law, should be allowed to inherit tax free as heterosexual marriages allow.

Watch for more updates as matters of this nature filter up the federal court chain.  Until it comes from the USSC it is not precedent across the country.  If you are in a same-sex relationship, estate planning is critically important.  Even though state laws may recognized your union, federal recognition may be lacking.

Attending 41st Annual Estate Planning in Depth

Lawyers become attorneys after earning a bachelor's degree ( 4 years) and then a law degree (3 years).  Yet, even though the school years come to and end, learning does not. Here in Wisconsin, attorneys are required to attend 30 hours of continuing legal education every 2 years, three of which must be focused on ethics.  If we don't, our license can be suspended.  Most attorneys enjoyed school, that is one reason we enrolled in a lengthy educational program.  I am one of them.  I absolutely love learning, and will be attending the 41st Annual Estate Planning In Depth seminar series by the ALI-ABI.  Thankfully it is offered in my hometown of Madison, Wisconsin.  Let the learning continue, and watch for blog updates on what was discussed.

What I've Been Reading: Understanding Philanthropy: It's Meaning and Mission

In addition to client meetings and drafting documents, I devote time to researching and writing a book on charitable giving.  During that process I recently read the book Understanding Philanthropy: It's Meaning and Mission by Robert L. Payton and Michael P. Moody.  Overall, it is a comprehensive look at the role of philanthropy from ancient to modern times.

Extensive attention is given to what philanthropy means, and the role it plays in society, especially contemporary America.  Confirming my belief that one does not have to be a Kennedy to be philanthropic, the authors defined philanthropy as voluntary action for public good.  Moreover, I strongly agree with their statement that too much of fundraising is spend focusing on the how and not enough on the why.

Both highly academic and dense, it is an enjoyable and entertaining read for anyone interested in learning more about philanthropy.

Six Million Probate Records in England Added to the Web

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Court records are a public document, and what it means to be public has changed with the explosion of the internet.  Case in point, in England six million probate records, from 1942 to 1966 are being placed on the English branch of Ancestry.com.  Included in the mass files are the wills of famous Britons.  Florence Nightingale, Winston Churchill, and more.

This new treasure trove of data will allow historians, families, and busy-bodies to search the probate records of famous and not-so-famous Britons.  Included in the information will be net worth at death, bequests to specific people, and names of relatives, as well as other interesting tid-bits.

Read more about famous British wills on the internet.

App for Final Wish

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There is an app (a.k.a. application) for everything.  And I mean everything.  One recent app that caught my attention is offered by Apple, and allows those who are dying to connect with others who share a final wish; it's called My Last Wish.

Do you want to write a book?  Sky Dive?  Hear Madonna in concert?  Walk the Great Wall of China?  Most likely you are not alone.  And this app allows you to post on a wall, include contact information, and hopefully join forces with another.  You can accomplish your dream, and make a new friend.

Technology -- it is making the world a small, and hopefully friendlier place!

Apple Downloads, Right Ends With Death

It used to be that a loved one's prized record collection would be passed down to a younger person on the family tree who shared a passion for music.  That tradition isn't so easy now that music has entered the digital arena.  Reading this article, a small blurb jumped out at me:

Apple treats a download that you purchase as a license to listen to the music, therefore it is only valid for you and ends when you die.

When filtered through my legal mind, it makes sense.  Downloads contain a purchase agreement, which is a contract.  Upon death, those contractual rights end.  Unlike vinyl collections, those downloads are not considered tangible personal property.

A blog is not a substitute for an attorney; please consult a lawyer in your area for advice specific to your situation.  Thanks for reading!

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World Wide Knit in Public Day Creates Charitable Donations

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Charitable donations do not always come in the form of money, as illustrated by this creative community in California.  As part of World Wide Knit in Public Day, knitters of varying skill will create items for donation to local charities.  Think caps for newborns, prayer shawls, and scarves for the homeless.  News like this puts a smile on my face.

Personally, I am not a skilled knitter.  I know one basic stitch and that is it.  But it is enough to turn yarn into scarves that I then donate to a local program for homeless children.  A K.I.P. is not scheduled for my part of the world, but I still think I am going to try and organize a group of friends for coffee, knitting, and some donations.  The event starts June 9th and goes until the 17th.

Charitable giving does not always involve a visit to your attorney or CPA, creating a trust, or other elaborate measures.  Think outside of the box.  Wonderful things can happen.

Charitable Giving

My week here will be closed by this quote:

"We make a living by what we get;we make a life by what we give."
-Winston Churchill-

In addition to my work with clients, my legal career involves a writing component.  In the works is a book on charitable giving.  We need to be a Rockefeller to plant the seeds of a legacy.  Stay tuned for updates, and enjoy your weekend.

Beware Fraudulent Estate Planners in Wisconsin

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Last week a financial planner I know contacted me because something seemed "off" with his clients.  In their mid-80s they told him they had just paid $2300 to a company to create a trust so that they would have not to go through probate.   The financial planner knew this was odd because he has heard me speak countless times; their asset profile had minimal probate items.  So he called me, and I said it sounded odd.  He encouraged his clients to call and ask for a refund.  Yes, they'd paid $2300 up front, before receiving documents.  And the man selling the trust was not  an attorney, but an insurance salesman.  Upon calling they were told that they needed a trust to avoid 4 mandatory court appearances and a 7% fee, or $35,000, for probate.  This man is telling them utter rubbish.  Beware the fraudulent trust mill!!!!

Married couples rarely need to go through probate because most items are jointly held.  Moreover, the probate fee is 0.02 percent, not 7.00 percent.  The man may have known this fact if he had gone to law school, which he had not.  Sadly, these people will probably never see their $2300 returned, and any documents that may be produced will be useless because they were not created by an attorney.

Protect yourselves and your elderly loved ones by:

• working with an attorney, licensed in the State of Wisconsin.  Contact the State Bar of Wisconsin before paying any money;
• make a deposit, not a full payment;
• be cautious if invitations for a "free chicken dinner and learn how to avoid" probate -- they are usually netting techniques used by trust mills that are not attorneys;
• work with an attorney you find through a personal referral, such as a family member or friend, your financial planner or neighbor; 
• contact the Office of the Commissioner for Insurance if the person "selling" trusts is a licensed insurance agent; and
• encourage your State representative to get serious on the Unauthorized Practice of Law in Wisconsin.  Let's get tough on these swindlers!

Partners in Life and in Death

Partners, whether same sex or not, usually intend to take care of one another during life and at death.  As more and more states are passing same-sex marriage laws, it is important for couples to make sure estate planning documents are in place.  This article, out of New York, emphasizes the importance of couples to put the proper papers in place so the survivor will inherit pensions, retirement accounts and other assets.  While the news focuses on same-sex couples, the fact is also true for male/female couples who are not legally married.

Estate planning is about taking control.  Set up an appointment to meet with an attorney in your state to review powers of attorney, beneficiary forms, and wills.  Being a partner or married may not create the automatic inheritance you think it will.

New Reality Show - Push Girls

TV, especially Reality TV, are not common in my life.  I prefer books, papers and blogs to the tube, but I did see an article (in the paper) about an interesting new show.  Push Girls, affiliated with the Sundance Channel is a 14 part series exploring the lives of several women who are paralyzed through injury or illness.  The series will follow them as the exercise, date, work, and perform other everyday tasks.  The article also states that in conjunction with the Reeve Foundation, it is working to fund raise for more research.

If you check it out, please comment and let me know if it is worth tracking down on netflixs!

It aired June 4th.

Deaths' Door Distillery

I'm starting the week off with a light-hearted post -- Death's Door Distillery opens a new facility in Middleton, Wisconsin today.  I've followed the company because my husband always jokes that I should give bottles out as gifts.  I'm not certain if that is a good idea or not.  What do you think?

Either way, I'm happy to see a Wisconsin business that is 1) growing, 2) maximizing locally grown wheat crops, and 3) creating jobs in the local area.

Welcome to the area Death's Door Spirits, and I think I'll just have to pick up a few bottles to have on hand for our three annual parties at our home.

Wisconsin's Death Rate Down, Obesity Is Up

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A recent UW-Madison report indicates that while the death rate in Wisconsin has declined, obesity rates are rising.  According to the study, in 2010, 26.9 percent of Wisconsin adults reported a body mass index of 30 or more (which equates to someone 5 foot 8 inches and weighing 200 pounds).

The article reports the findings, but is nearly void of any discussion of why or what to do.  As we enjoy the lovely summer days of Wisconsin living, I pause and wonder, what can we as a society do to reverse this trend?  Is poverty at the core?  I highly doubt it.  I suspect environmental conditions across socio-economic boundaries play a huge factor.

In my house we attempt to use foot and pedal power as much as possible.  We also limit our intake of sugary and highly processed foods.  Even with that, I find it hard to keep the pounds off each year.  What about you?  What do you do to work against this alarming trend?