Safekeeping, Wills, and a Trip to the Courthouse

Earlier this summer I crossed a task off of my to-do lists -- file client wills at the courthouse.  It had been something I'd intended for my assistant to do, but when I was scheduled to give a seminar downtown I figured "why not walk over and do it myself?"  And am I glad I did.

Sure, I had called in advance to find out the steps involved.  I was told what I'm certain they tell anyone calling to inquire about filing a will at the court for safekeeping.  The fee is $10, and the matter is sealed until death occurs.  Then I showed up in the lobby.

First I was told "you need to have it in a sealed envelope."  My luck gave me a break and they gave me three envelopes even though one clerk pointed out the law library sells them.  Next I was told the client's full name and address were required, along with mine.  Hmmmm, that was a detail they'd skipped on the phone.  Thankfully I had the client files with me, and thus the required information.  Had I sent my assistant, he would have returned with wills in hand seeking addresses.

So, if you are going to attempt to file a will with the court, call first.  You'll get some of the information you'll need.  Then go in person, with your file or information.  Bring envelopes large enough to hold the will.  Have your own pen.  And don't forget a checkbook to pay the fee.

Being an attorney means anticipating bumps in the road and navigating them when the occur.  It didn't rattle me too much, but for those without a lot of exposure to the courts, I'm certain the experience would have been frustrating.

Estate Planning -- It's Not Just For Seniors

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And the conversation went like this:

My In-law:  "That was a nice party you had over the weekend, you must have had some clients there.  I saw several retirement age women chatting at the dinning room table."  

Me:  "Thanks, we had a nice number of people attend, and yes, several guests were also clients of mine.  But they all were married couples with young children.  I think the women you noticed were friends through the UU church.  Why did you think they were clients?"

My In-law:  "Well, that is the age people do those papers, right?"

And there is myth number one about estate planning -- it is for those in the later years.  Wrong, oh so wrong.  A large portion of my clients are 40 or younger.  The motivation for an estate plan is rooted in their new role as parent.  You see, the only legal way to nominate a guardian for your child is in a will.  For parents who know this, the desire it strong to take charge and put things in order should the dreaded occur.  What is worse for a young child loosing both parents?  A custody dispute erupting in the wake of their untimely death.

But my clients' ages push even lower sometimes.  This week I have a young women, and I mean young, coming in to set up papers.  She is 21.  And about to embark on a yearlong volunteer project.  Before leaving she will put powers of attorney in place, one for finance and one for health.  We'll also create a basic will.  Most likely these papers will never be used.  But, should an accident occur, there will be no scrambling to establish guardianship by her parents.  Once she hit age 18, she became an adult.  Automatic ability for parents to do anything ceased.  Keep this in mind as you send kids off to college or first jobs.  And remember, estate plans are not just for those receiving mailings from AARP.

Looking Forward to the Capital City 5k Saturday

Tomorrow marks the second time I will have run a 5k this year.  My running efforts were sidelined following the birth of our son in 2008 and our daughter in 2010.  My work as an estate planning attorney has motivated me to change that practice, and is behind my decision to run the Capital City 5k this weekend.

An evening run was appealing; what a great "date night" with my husband.  The sitter arrives at 5:30.  We'll drive to the Goodman pool, park, catch the shuttle to the Square and run back for the pool party.  The evening will result in:

• quality time with my spouse;
• a solid workout;
• raise funds for the kidney foundation;
• set an example of community and healthy living for our young children; and
• give us a write off on our taxes.

When you spend your week counseling people about death and illness, it motivates you to make your life the best possible.  There is no dress rehearsal or second chance. Make the most of your time.  Make that time the best quality you can.  You won't get a second opportunity.  Clients pay me in dollars for the work I do for them, but their stories give me the greater gift of awareness that life is finite, and it is not knowledge I wish to squander.  And so I will run....even though it will be a challenge.

The Power of the Personal Representative in Wisconsin

"Number 13 is my favorite -- the power to demolish or erect structures."  Everyone chuckles.  It is my standard comment when walking clients through drafts of their wills.  All of my wills include this phrase.  It is one of nearly 40 enumerated powers given to the personal representative, a role Hollywood calls the executor.  

In Wisconsin, the personal representative is the person empowered by the court to facilitate a probate.  He or she is either nominated in a will or steps forward if the decedent died without a will.  In order for s/he to gather assets, pay bills, and distribute the balance, s/he needs the ability to function as though s/he owned the decedent's property. And one function is to demolish or erect structures.

Seem odd?  Not really.  Imagine a home that was owned by a widow.  Upon her death the PR decides to list it on the market.  But, the bathroom is from 1963.  An update is needed to make it more attractive to sell.  In a real case I am handling, a garage straddles two pieces of property.  One is to be sold, the other inherited directly.  And I was able to tell the PR -- you can demolish that garage under power number 13.

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The Marriage Equivalency Project Blog

I love it when new and interesting things pop into my life, especially when those new things are in the written form.  Yesterday I found a link on a friend's Facebook page about a new blog.  Not written by attorneys, it aims to chronicle the marriage of a man and women, and explore the inequality that would result if the authors were a same-sex couple.  The posts are just beginning on The Marriage Equivalency Project blog, but I'm eager to see what they experience.  They say "we have a lot to learn about federal, state, and local" laws related to marriage.  Yes, they do.  I restrained myself and only left one comment -- about how the estate tax credit is denied to same-sex couples that have a legally recognized marriage.

Sensors, Seniors, and Independent Living

If you have aging parents, chances are good that at some point in the recent past you have wondered "hmmm, that is odd, why didn't they answer the phone?".  If you are like me, which you may not be, your mind starts churning out scary scenarios.  As an estate planning and probate attorney, people pay me to see bad scenarios and plan accordingly.  It is a hard function to shut off.  And so, numerous times I've found myself wondering if I should drive over to my mom's house to check on her when she doesn't pick up the phone.

Then in Sunday's paper there was an interesting article about sensors monitoring a residents bathroom use, waking time, etc.  The sensors detect when a person, in this case a senior, is up and about.  Patterns can be determined and irregularities detected.  The fee is rather modest, far less than assisted living.  However, some seniors feel it it TMI - too much information.  I can understand that concern, but if it allows one to live in their own home with a safety net -- I'm all for it.  Now I just have to convince my mother.....

How about you -- yes or no to the sensors?  Share your thoughts and leave a comment.

Green Cremation Comes to Minnesota

My progressive neighbors to the north have done it again, beating us to the punch and out greening us here in Wisconsin.  Just the second state in the nation, a funeral home now offers "green cremation".  A mixture of water and chemicals, as opposed to fire, return the body to an organic state.  A process that would take 25 years in a common burial, takes 2 to 3 hours.  The cost, about $2300.  The news story states that green cremations are currently in the works in Illinois as well as California.

Click here for the news story and video.

Charitable Auctions and Tax Breaks

Earlier this week I put a post on my Facebook page about a gift certificate I had donated to a non-profits on-line silent auction.  Mistakenly I said "get a will and earn a write-off".  Another lawyer caught my mistake!  According to the IRS, only if the winner paid more than the fair market value of the donation, was a deduction allowed.  And then the deduction would only be for the amount exceeding the fair market value. For example, my gift certificate was for $350.  Only if the winner pays more than $350 is a deduction allowed, and then only the amount greater than $350.  So if they paid $400, the winner would have a charitable gift deduction of $50.

Lawyers, we are the subject of many jokes, but our keen eyes and attention to details are a great asset.  Thanks to Attorney E.W. for catching my oversight.  The Facebook post was quickly modified.  And here is a link to that on-line auction.

Same Sex Couples Face Tax Barriers

It appears that yet another case is filtering its way to the USSC with another challenge to the Defense of Marriage Act.  Why?  In this case a lesbian widow (married in 2007 to her partner under Canadian law, and later recognized under New York law) had to pay over $300,000 in estate taxes when her partner died.  Yes, the partner named her as the heir, but since it was a marriage the federal government does not recognize, federal tax was owed.

Lawyers have a natural understand of how laws conflict.  There is local law, state law, federal law, laws of other countries.  Here, in order to avoid the federal estate tax, couples need to be married.  Partnered (same sex or not) doesn't cut it.  Taxes are owed.  The same fact pattern, with one simple change, the deceased was a male (from which the federal government would have recognized the marriage) no tax would have been owed.

I'll be watching next Spring when the court begin issuing opinions.  My law school days were long ago, but my memory tells me that issues of marriage were traditionally set at the local level.  Will the court uphold DOMA or find it unconstitutional?  Time will tell.

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What I've Been Reading: The Generosity Plan

If a career in the law tempts you, make sure you enjoy research as well as reading.  And I mean lots of reading, dense reading!  And I do, both are a joy of mine.  Now that law school days are well behind me, I still seek out changes to research, read, and write.  Currently I am working on a book about how anyone can leave a legacy.  As part of my research I read a wonderful book, The Generosity Plan: Sharing your time, treasure, and talent to shape the world by Kathy LeMay.

Organized into ten chapters, LeMay jumps off with her story.  Similarities in our backgrounds struck me.  Both of us shared modest backgrounds and an intense desire to do good for the world.  She then takes you through self-exploration and ends with a plan on how to improve the world.  Concise, filled with examples, and useful ideas, you want to put the book down and go make a difference.

Unlike my focus (giving at death), LeMay has countless ways for someone with little to no financial resources to start a giving plan.  Ideal for those just out of college, working in careers that do not offer steep financial rewards, or parents who want to start kids on the giving path young -- it works for everyone.  After reading the book, my husband and I have decided to "highlight" one charity each month for our children.  We'll donated time or money and put a flier or ad on our children's bulletin board.

If you are looking for an antidote to the depressing news of our time, pick this book up.  There is good in the world, and all of us have the ability to enhance it just a bit more.

Healthy Sibling Competition

It was last week that I began working with a new set of clients.  Our first meeting (one of three) went well.  After an hour of discussing their family dynamic, financial situation, and goals for doing a will and powers of attorney, we had a plan.  My job was to create drafts, which would be discussed at the second meeting.  The last business matter of the day was to set a time and date for the signing.  Done.  And with that the female client says "Yes, I'll have this done before my brother!!"  And a happy smirk enveloped her face.  Apparently they had challenged one another to getting these important papers in place.

Wow, at 65 she is still competitive with her brother.  Instantly I saw into the future, my own daughter being happy she bested her brother at a challenge.  As the mother of a 4 and 2 year old, I routinely find myself asking "who will be the first one with clean teeth?" or "who will get in the car first?"  Off like a flash go my two little ones, eager to out-do their sibling.  I wonder at times if it is a good parenting technique.  Seeing my client's reaction, which evoked a loving yet competitive relationship with a brother that had lasted 65 years, I was content with my decision.

My only hope is that my two kids will know not to wait until they are in their mid-60s to create these important documents.

The author's children, competing to get a better view of the ducks at Peck's Market East in Spring Green, Wis. - M. Gustafson Gervasi, July 2012

Some Other Time....

Clients, seminars, drafting, billing, oh and yes, blogging.  There is a lot on my plate these days, and in an effort to make life more enjoyable I am letting Josh Turner bring you his message today.  The lyrics from Time is Love strikes me every time it comes on the radio.  When you spend your professional life helping people plan for illness, death and taxes you are hyper aware that life will be over in what feels like an instant.

There is work to be done, but sometimes things can be put off for another time.  Blogging is one of them today.

Australia's Carbon Tax and the Dead

Life is stranger than fiction, we all know that.  Yet, I was thrown a bit earlier in the week when I read an article out of Australia.  In an effort to encourage people to reduce their carbon footprint, the government began implementing a "carbon tax".  Even the dead won't escape it, in fact, death triggers a carbon tax.

Yes, a $55 fee was tacked on to a burial bill for the newly deceased.  I understand charging a fee, but seriously, does the government think people will stop dying to avoid the fee?  I'm being somewhat silly here, but I do wonder, what behavior are they hoping to change?  Is it to encourage green burials, cremation, etc.?

I posted a comment on the blog, but have not heard anything more.  It is comforting to know that bizarre government policies are not solely a product of the good ole US of A.

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Changes Coming to Wisconsin's EdVest

An email appeared in my in-box last week from week from Wells Fargo.  It is the current administrator of Wisconsin's 529 Plan, named EdVest.  A 529 is similar to an IRA in that it gives you tax breaks (deposit, growth, removal) for setting money aside.  Instead of for your retirement, the dollars are for college education.

As soon as we received our infant son's Social Security number, we opened an account.  That was back in 2008.  Another account was opened in 2010 when our daughter was born.  I am the owner of both accounts, s/he is the beneficiary. Given that pattern, it is possible to set up an account prior to the birth of a child.  Once he or she arrives and gets a SSN, you just list them as the beneficiary.  The benefits of 529s are numerous, but they are not the focus of this post.  The focus is on the fact that as of October 31, 2012, the current administrator will step aside.

Assuming contract negotiations progress, the new administrator will be TIAF-CREF.  Several factors remain unknown.  As a result, I am not following the suggestions from Wells Fargo to make deposits as normal.  What am I wondering about:

1. Will the Vanguard index fund we currently use remain a fund option or will be forced to select something off of a new menu;
2. What fees will be charged by both the administrator as well as the fund?  Fees eat away at growth.  They can be hard to spot and add up quickly.
3. Will new beneficiary forms be required?  Currently I own both accounts, my children are each a beneficiary, and my husband is the successor owner.  Will those designations follow?

Our plan was to make our $6,000 (that comes out to $3,000 per child) annual contributions in August of this year.  Instead, the money will be parked in an account until these questions are resolved.  At this point in time it remains unknown if we'll continue with EdVest. Most likely we will, but trained to see problems on the horizon, this attorney is going to wait until the contracts are signed and the numbers known before investing more money with EdVest.

The Horizon

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What If You Live to 150?

What if?  It's a question I pose to clients all the time.  What if you die first?  What if your child predeceases you?  What if you have a stroke and cannot operate your business?  So naturally, what if you life to 150 years caught my attention when reading Sonia Arrison's book 100+: how the coming age of longevity will change everything, from careers and relationships to family and faith.

The book was not as gripping as I had hoped, but it did set in motion several thoughts.  What will need to change in the area of retirement savings as people's life spans continues to increase.  Will retirement even happen?  Also, what will families begin to look like?  Will there be larger and large gaps between the ages of children if fertility is extended?  Will there be more and more blending of families and third and fourth marriages happen.

Life spans have already increased 40 years since the turn of the century.  What if -- living longer is a nice thing to consider given the questions I usually pose to clients.

Deathbed Thoughts

Illness, death and taxes -- that is the concise response to the question "what type of law do you practice?"  And when you spend your days focused on what will happen when people are too sick to sign tax forms or die suddenly of a blood clot, it is not too much of a jump for your mind to ponder your own demise.  And that can make you feel a bit odd because most people can't see the scenarios my mind churns out on a daily basis.  It is what I am trained to do, it it what clients pay me to think about.  And it was with comfort when I read an op-ed in the NY Times and the writer (not a lawyer) made mention to thinking about his own death bed....I'm not alone!

I suppose it's possible I'll lie on my deathbed regretting that I didn't work harder and say everything I had to say, but I think what I'll really wish is that I could have one more beer with Chris, another long talk with Megan, one last good hard laugh with Boyd.   Life is too short to be busy." - Tim Kreider, The Busy Trap, NY Times, June 30, 2012

And it is this same line of thinking is at the core of my motivation to practice law part-time.  Life it too short.  The brevity of life, and knowing it is brief, focuses my attention and is why I balance my role as mother against my role as lawyer.  Many days I go from one hat to the other in 0.2 seconds.  Break neck change of pass can be tiring, but it is worth it.  Life is too short not to maximize being with my kids, and will pass too quickly for me not to use the legal education I fought so hard to earn.

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Your Lawyer's Succession Plan?

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"And what if they die?"  It is a question I ask over and over with clients.  During an initial meeting we discuss who will inherit the client's property.  Almost all have an immediate answer:

• my partner, or
• my daughter, or
• equally to my siblings.

Okay, and what if they die before you?  It is my follow-up question.  There is usually a pause, and a hmmmmm, followed by an answer.  

• my cousin, or
• my friend from college, or
• my siblings' kids.

Can you tell where this is going?  The response is immediately met with the same question, and what if they die before you?  My preference is to take this out several layers.  Doing so gives my client control over the distribution of an estate.  If the documents are silent, state statute would control.  And that may conflict with my client's wishes.  The routine is, well routine.  

And then the other day a client fired back a question that made me think....hmmmmm.  She asked, and what if you die before me?  Who is your back-up?  Being a lawyer, my answer contained the phrase "it depends".

First, the lawyer who drafts an estate plan is not the automatic lawyer for the probate.  At the time of death, the personal representative makes the decision about whether to hire an attorney and if so, which one.

Second, clients can tell the personal representative that they would like them to hire me, but it is advisory, not mandatory.

Third, I do have a business succession plan, which is basically having someone take care of loose ends if I died while representing clients.  But, since it is not needed at this exact moment, it is not something I share with others.  I might change my mind on aspects as time passes.

And so there you have it, the reason I love what I do.  Even on matters that seem routine, I am presented with interesting twists and turns.  Learning, thinking, changing -- the life of a lawyer is a rewarding one.

Vacation Prep When You Are An Estate Planning Attorney

Without fail, every Spring I get calls from new clients.  What prompted them to create or update estate planning documents?  Spring break travel.  Something about getting in a car, train or plane and going far from home makes the average person think "what if I die".  Now imagine how that must feel if you are an estate planning attorney?

Last month my little family was making plans to drive 600 miles round trip to Bayfield, Wisconsin.  The place where it all began.  My husband and I wed there in 2006, and in 2011 we returned with our son and daughter.  With this years trip, plus the fact reservations have already been made for 2013, it now qualifies as an annual vacation in our home.

Hyping the long drive to my nearly 4 year old son, I was posed with this question -- "Mama, what happens if we crash the car?".  My son is very "male" when it comes to vehicle calamities.  He loves crashes, bangs, rescue vehicles, etc.  So this question was completely in character for him.  But it got me thinking about our wills.  We've had changes made for 6 weeks, but still haven't signed them. What if, what if....?

So, after a lovely anniversary dinner my husband and I walked to a nearby park and met up with friends playing volleyball.  They took a short break, and served as our witnesses.  Who says lawyers aren't romantics!  As we walked home my husband was happy to have the "unpleasant thoughts" of signing our updated papers behind us.  Or so he thought.

Once the kids were in bed, he went for a run.  Immediately upon returning I asked him for a phone number.  - Why  he responded?
-I'm writing down numbers of people who need to be contacted if we "crash the car".

A cloud of sadness shadowed his face, but I pointed out that no one would have a clue of how to contact this person if both he and I were in the ICU or worse.  And so I not only left our updated papers, but a list of phone numbers for the back-up :

• power of attorney for finance;
• power of attorney for health care;
• personal representative;
• guardian; and
• trustee.

I also wrote the numbers down for our babysitter and pet sitter.  All were neatly organized in my smartphone.  But my husband and I are the only ones who know who these people are.  We needed to leave a trail.  So, once the numbers were found, they were also emailed to one another, and a hard copy left in a safe spot (disclosed to those who needed to know).

And that is how an estate planning attorney prepares to travel.  Not only do I update my documents, I make sure people can be found easily.  Attorneys are trained to see worse case scenario.  Some may envision a crash.  I can see the scrambling for numbers after the crash.

Thankfully we did not crash the car.  We enjoyed 4 glorious days together and are now back in our normal routine of work and family time.

Image Credit: M. Gustafson Gervasi, June 2012 - Joni's Beach, Madeline Island off the coast of Bayfield, Wisconsin

Domicile, A Word Attorneys Think About

Non-attorneys probably think in terms of "where I live".  Attorneys think about "where a client is domiciled". On the surface one may seem like a convoluted legal term for the same idea, but that may not be the case.  Whether it be for tax issues, filing a will, executing powers of attorney, I as an attorney need to know where my client is domiciled.  Legally domicile means your principal residence, to which you plan to return. Here is why I care.


State governments are broke, some more than others.  Some states have state estate taxes.  I want to make sure my clients truly live in Wisconsin when planning their documents.  I don't want the IRS or other tax cropping up after the client's death claiming the person was domiciled in that state, possibly subjecting the estate to taxes. I also want to make sure the laws of Wisconsin truly apply to them.

Just because you are in Wisconsin does not mean you are actually domiciled here.  What constitutes domicile?  It depends (yes, lawyers really do say that).  Things I consider include, but are not limited to:

• where do you vote
• what state issued your driver's license
• what local charities do you donate to
• where are you a member of a religious institution
• where is your vehicle registered
• what banks do you use
• location of doctor, dentist, and other health providers
• professional license location

Life is not always as it appears to be.  Do you know where you are domiciled?  For those who are relocating for work, life change, etc., it is an important question to ask.  An attorney is a wise place to go for the answer.

Enjoying the Fourth of July

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Happy Birthday America!  

I'm spending the day with my family and will be back tomorrow 

with more thoughts on life, as scene through the eyes of an estate planning and probate attorney.

Family Friendly Events at the Farley Center in Verona

Daily I find emails in my in-box that deal with death....that's life when you are an estate planning attorney.  One email caught my attention.  The Linda and  Gene Farley Center for Peace, Justice, and Sustainability in Verona, Wisconsin is holding two events this summer.  Both are kid friendly.  What does this have to do with death?  Among many things, the Farley Center offers green burial in Wisconsin.

Saturday July 7,  8-10AM -- Bird Watch Walk and Breakfast
Join Ed Sauer, bird watching enthusiast and member of  the Audobon society, on a walk through the woods at the Farley Center watching and identifying birds.  Specially geared for beginners. The Farley Center property has many varieties that make their home here.  End the walk with a simple breakfast together, donations will go to the Audobon Society.  Wear sturdy shoes and bring binoculars if you have them.  Please pre-register by Saturday June 30th as numbers are limited.

Saturday, August 4 (time TBD) -- Peace Literacy for the Family
Grandparents, parents and children are invited to a read-in with peace story books.  There will be fun activities to do together amidst the peace of the Farley Center.  Mark your calendars

My kids are a bit too young to enjoy the birding and breakfast event later this week, and I'll be out of town for the peace read-in.  I do plan to take them out for future events, maybe in the fall.  I've been to the center in the past, and highly recommend a visit if it meshes with your values.

Want Pay On Death Cards? Bring Your Patience Along

Upon getting married my husband and I updated our estate planning documents.  Part of the process was completing pay on death cards (a.k.a. PODs) for our credit union accounts.  The accounts were in both our names, but I wanted to make sure we had secondary beneficiaries named.  That is how a lawyer thinks; if we both die, then the money should go to....

My husband, an electrical engineer used to handling finances, did not want to put all the paperwork on me, so he offered to call the credit union for the cards.  Here is how the conversation went:

Husband: Yes, I just got married and my wife wants PODs put on our accounts.
Customer Rep: Sir, I see that the accounts are joint.  Your wife doesn't need to worry about PODs.
Husband: Hmm, she said we really needed them.  Would you send the forms?
Customer Rep:  Oh sir, your wife is confused.  If you die the assets will go to her because they are joint.  You don't need these cards.
Husband: Hmmmm, my wife is an attorney.  Specially an estate planning and probate attorney.  She said we needed them...
Customer Rep: I'll send them right out sir.

The Customer Rep was trying to be helpful.  But, she was not an attorney.  She was not approaching this like an attorney.  I wasn't concerned about the monies if my husband died, but rather if we both died.  By having PODs the accounts would avoid probate; avoiding the 0.2 percent probate fee and available almost immediately to the family we had named.  PODs, TODs, beneficiary forms, etc can be very useful.  Setting them up will take patience.

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