Thursday, January 31, 2013

Workshop - Supporting a Loved One at the End of Life

In some cases we have advance notice that the end is near.  While painful, it also offers an opportunity to celebrate life together and support a loved one on a final journey.

And there is a seminar on the topic being offered in the Madison area Sunday, March 17th.  Details are on the web site for the Farley Center, a non-profit organization offering a green cemetery.  This appears to be a wonderful way to enhance your skills during a very difficult time of life.

M. Gustafson Gervasi, 2009 - Door County, Wisconsin

Wednesday, January 30, 2013

A Lawyer in the Doctor's Office

Earlier today I waited patiently in the exam room for a doctor.  I questioned the visit, but in the end was happy I went.  Turns out that at age 39 I had an ear infection.  And according to the doctor, if you were a baby you'd be screaming your head off!  

While waiting I noticed that the wall calendar was compliments of Agrace Hospice care.  Odd choice for a family doctor's office.  Not the exact message I may want, or maybe it was an intentional reminder that we all face the same destination.

Beyond treating my inflamed ear, I was interviewing this doctor to be my primary care physician as I prepare to enter a new decade, and tackle the new health standards that will follow.  Yes, you read that correctly, I was interviewing her.  Will we work together, etc.  My decision to screen doctors was reinforced this past week when reading the 3-part series in the Wisconsin State Journal about medical malpractice and other horrors.  More than ever it seems, it is essential for patients to be proactive in doctor selection.

How about you -- did you interview your doctor prior to establishing a relationship?

Tuesday, January 29, 2013

What Makes a Gift a Gift?

There are days when my role as parent as well as lawyer intersect.  Case in point, earlier this week I attempted to defuse a fight erupting in our living room between our 4 year old son and 2 year old daughter.  It started with the phrase, but honey you made a gift of the car to your sister.  And from it flowed a nice description of what makes something a gift, and underscored a key element that many of my clients also struggle with -- surrendering control.

Dear, you said this car was for babies and you did not want it.  She said she wanted it, and you agreed.  Once you handed it to her, it was hers.  It was a gift.

A gift, when viewed through a legal lens, requires: delivery; donative intent; and acceptance.  Delivery can take many shapes and forms (there are volumes of case books on the topic), but requires the element of surrender.  And with that comes the cold harsh reality that once given, the giftor cannot control how the giftee uses item.  For my son that meant his sister was free to put the car down for a nap instead of turn it into a rocket, per his wish.  For my clients it often means giving a gift to an adult child, and accepting that the adult child can do whatever he or she desires (share with a spouse, gamble away, etc.).  Donative intent generally is based on the giving persons words, but the courts can infer it from behavior as well.  Acceptance  happens when the new party, well accepts the gift.  Until acceptance has been made a gift can be revoked, but not after.

In our living room I pointed out that the car was given as a gift (it was for babies in his mind), no money was exchanged, and his sister gladly accepted the toy into her fold.  No longer able to be revoked, it was hers, and it was taking a nap, not blasting into space.  My 4 year old was put off a bit by my legal lesson, as are some of my clients at times.  Realizing control is gone, and watching something that was once yours be used in a way you disagree with can be hard to stomach at times.  Lawyers -- we do not always deliver the words our clients, or children, wish to hear.

His Toy Bin -- Image Taken by Ian. G. Gervasi, 2013, age 4

Monday, January 28, 2013

Consider 5 Things When Selecting a Power of Attorney for Health Care

Image credit: - free image

Illness, it is at the top of my mind these days.  Thankfully it is not the serious kind of illness many face, but rather the rank-and-file colds, virus, bugs, and assortment of ick that descends upon so many during the winter months.  As I cough, sip tea, and reach for the tissues, my mind drifts to some advice I share during the many educational seminars I give throughout the year:

When selecting a power of attorney for health care, give it thought, do not go with your knee jerk reaction.  Sadly I speak from personal experience, having served as my father's POA while he was dying and as my mom's on her numerous and lengthy hospital stays.  When making the nomination, remember these 5 things:

  1. You do not need to name a relative.  In my mind relatives share your DNA, family shares your life.  Friends who have become your family may be a more logical selection than a relative you are not close with any more;
  2. Nominate someone who is comfortable speaking with doctors and medical staff.  You need an advocate, and not every person is cut out to question, push, and even border on demand.  This is the person you want speaking for you when you cannot;
  3. Who in your circle of family and friends is comfortable with medical terminology?  It will be tossed around a great deal, you need someone who understands or at least will insist that it be explained in terms that make sense to non-medical folks; 
  4. Does the person have the emotional strength to function while you are sick, really sick?  This power does not come into play for a sprained ankle, we are talking serious illness and that can be difficult to stand bye and watch; and
  5. One that stood out in my case -- does the person have the time to be there.  When my father was dying he spent his final month in the hospital, and I have not only a legal business but a 13 month old child.  It was my weakest point, but I made it work.  Make sure you are picking someone who can be at your bedside!
Those are my personal thoughts.  Did I miss one that you think is more important?  If so, post a comment and share.  Thanks for reading, and have a great week.  

Friday, January 25, 2013

WI Chapter of Gilda's Club to Keep Original Name

Late last year I blogged about how Gilda's Club decided to change its name, and it appears that the non-profit listens to members and the general public.  Following huge outcry, the organization has opted to keep the name.  In my original post I did not realize that it was only the Wisconsin Chapter proposing the change,a fact that is much more apparent in the news coverage.  For more on the story, visit NPR's coverage.

When first hearing of the change it reminded me of a topic I routinely address with clients -- when including a non-profit in your will, it is essential to include the phrase "or its legal successor organization" because as shown here, names change.  Sometimes it is minor, such as adding "Inc." or "Foundation" other times it is more drastic.

I will leave you with a clip, honoring the comedian from which Gilda's Club emerged.  Thanks for reading, and I will be back next week with more thoughts on illness, death and taxes for the middle class.

Clip via YouTube -- Never mind.

Thursday, January 24, 2013

Chili Cook-Off to Benefit "Catch a Dream" Program

The best way to survive a Wisconsin winter is to embrace the things that make it winter here in the Upper Midwest.  If outdoor adventures on skis or skates are not your thing, consider a chili cook-off.  Proceeds will aid Regional Hospice "Catch a Dream" program.  Here are details that I pulled from an announcement by the hosts:

Join Deerfoot Lodge and WRLS 92.3 at Deerfoot Lodge on Saturday, February 2nd from 11:00am-3:00pm to sample some delicious chili and support a great cause! A $5 suggested donation gives you the chance to sample all the chili options and enjoy a bowl of your favorite. Are you known for your unbeatable chili recipe?? Contact Deerfoot Lodge at 715-462-3328 by Saturday, January 26th to submit your chili entry for the contest. All proceeds from the event go to benefit Regional Hospice Services' "Catch a Dream Program."

Wednesday, January 23, 2013

Personal Representative vs. Trustee -- What is the difference?

Cpip is from Family Feud via YouTube -- claims to be outrageous answers.  View as you see fit....I skipped it, but love the image

If I were to create a top ten list of most frequently asked questions by clients, this one would rank in the top 5.  What is the difference between the personal representative and the trustee?  When working with clients I offer the following:

  • Personal representative -- that is the term we use here in Wisconsin, Hollywood and other states may use the word Executor.  Basically, the PR's job is to take the will to the court, notify creditors, pay final bills and taxes, and then distribute what remains of the estate (either according to the terms of the will or if no will, statutory requirements).  A PR's job usually runs 12-18 months;
  • Trustee -- is a person who is charge of a trust, which can be created during life or at death via a will.  A trustee's job is to invest or manage assets held in the trust (cash, investments, property, etc.), administer the trust (i.e. write checks to beneficiaries), and when the trust ends (all trusts must end) distribute according to the terms of the trust.  This job can be quite short if a trust calls for distribution upon the death of the grantor (the person who put assets into the trust) or last for decades depending on the terms of the trust.
Key differences between the two roles include:
  • PRs operate in the overview of a court, while trustees rarely fall subject to court review because a trust is designed to keep assets out of probate court;
  • PRs have less discretion than a trustee;
  • PRs usually finish the work in less than 2 years, while a trustee can operate for decades.
  • A PR is likely to sell off property, such as home and car, and the distribute those proceeds to the heirs.  In contrast, a home in a trust may be managed by a trustee over time.
And there you have it, my quick answer to what is the difference between a PR and a trustee.  Thanks for reading, and I'll be back with more thoughts on illness, death and taxes for the middle class.

Tuesday, January 22, 2013

Comfort for Children Who Have Lost Someone Dear

Being someones estate planning and probate attorney means I define words like "issue" and "codicil".  It means I review papers for proper signatures and dates.  And a lot of times I am asked to provide names of other professionals who can assist.  From CPAs to financial planners to therapists, I have contacted information on hand when asked.  And now I can add a new resource to my folder, Camp HOPE.

A few weeks ago it was profiled in our free weekly paper here in Madison, The Isthmus.  Profile what seems to be a nurturing and much needed non-profit, the camp provides a safe and nurturing place for children who have lost a loved one.  Primarily those who have lost a parent, but also for those who have had a close friend, teacher or other family member die.  Down the road from the children's camp is one for adults.  It is held three times a year: May, October and February.

Knowing the pain that is being eased makes my heart feel heavy, but as a parent I am thankful that children are receiving skilled care -- for FREE.  The camp is run on donations gathered by its founders, Becky and Marty Loy.

Hats off to them for turning their own grief (it was founded after the death of their infant daughter) into a source of comfort for countless children.

Monday, January 21, 2013

Letter to Editor - Natural Burial in Verona Wisconsin

In follow-up to my post last week about the Wisconsin Death Report, I wanted to share a link to a letter to the editor that appeared in today's paper.  It is a well written response to something I found odd about the article, the fact it mentioned burial and cremation, but not green (aka natural) burials.  Click here for the words of Kevin Corrado, Coordinator of a natural cemetery in Verona, Wisconsin.

Quoting Martin Luther King, Jr.

Image credit: - free image

The following quote conveys so much, yet with so few words.  Today I honor the wisdom and grace of a truly great American, Rev. Martin Luther King, Jr.

Life's most persistent and urgent question is, 'What are you doing for others?' -Martin Luther King, Jr.

Statements like this urge me on as I finish work on my book, The Middle Class Philanthropist: How anyone can leave a legacy.

I'll be back with more thoughts tomorrow.  Thanks for reading.

Friday, January 18, 2013

When an Estate Planning Attorney Reads the Wisconsin Death Report

Earlier this week a story in the Wisconsin State Journal caught my eye, Cremation now more popular than burial, state report says (no apparent link on-line).  Given my legal focus, I read on.  According to the reporter, in 2002 sixty-two percent of people in Wisconsin were buried, compared to twenty-nine percent selecting cremation.  Fast forward to 2011 and the rates flip, 46.9 of Wisconsinites who died opted for cremation and 45.8 percent used traditional burial.  Click here for a link to the Wisconsin Death Report.

Why the change?  The article attributes an increased interested in cremation to its lower cost, and perception that it is the more environmentally friendly approach.  Upon reading this I immediately wondered why the reporter had not mentioned green burials, which have a much lower carbon footprint than either cremation or burial?

The article close with another interesting statistic -- in 2011 the two leading causes of deaths in Wisconsin were heart disease and cancer.  Combined they made up 47 percent of all deaths that year!  Which was yet another reminder of how important it is for me, as an individual, to tend to my health.  Stay active, eat healthy foods, offset the stress.

And so I'd like to close this week with a link to a tasty and very healthy favorite recipe of mine.  It is for a Greek Stew that is perfect for winter meals.  I've blogged about it on my other site, The Frugal Upside.  Enjoy, stay well, and I'll be back next week with more thoughts on illness, death and taxes for the middle class.

Thursday, January 17, 2013

Quote by Albert Pike...

Inspiring words have a special place in my heart, and at the moment those related to a charitable life are at the top of the list.  Raising children, writing a book on how the middle class can be philanthropic, and reflecting on what the world might be like in 100 years all underscore my focus on charitable works.  Toss in my attitude of anyone can make a difference, and you'll understand why the following quote jumped off the page at me:

"What we have done for ourselves alone, dies with us; what we have done for others and the world remains immortal". - Albert Pike
I'm curious -- for those interested in living a charitable life, have you included a cause in your end of life paperwork?

Image credit: - free image

Wednesday, January 16, 2013

Why I Didn't Get a Flu Shot....Even Though It Was On My To-Do List

Image credit: - free image

Shame on me, no flu shot this year.  The reasons why are worth examination.  Knowing the obstacles might just increase the chances of more vaccinations in years to come.

  1. I'm not pregnant nor are my children one and under.  Yes, I admit that while bringing new life into this world I was more exacting with my health.  I ate right, slept more, avoided caffeine, and got a flu shot;
  2. Walk-in clinics at Target and other pharmacies aren't exactly easy.  Most trips include having my children in tow (imagine shopping with Thing One and Thing Two from a Dr. Seuss book), so my focus is to get in, get our stuff, and get out.  Making a stop that requires me removing the layers we all wear here in the Upper Midwest to receive a shot is not easy.  And if it is not easy, well, it slides on my priority list....even though it should not;
  3. My doctor's office requires an appointment.  Seriously?  If there were a walk-in clinic that also worked well with the hours our sitter is available it would be far easier to work into my schedule.  Maybe they did offer a clinic, if so, word never reached my in-box; and
  4. It hurts.  I know that my arm will be soar afterwards and I don't need one more thing zapping my energy these days.  Yes, I know how serious the flu is....I do know better.  But knowing and doing are two different things.
And there you have my confession.  An estate planning and probate attorney who neglected to get a flu shot.  Antibacterial hand wash is stashed in my car, my office, and my bag.  I am doing my best to minimize my chances of transmission.  And I pledge to be a bit more on the ball next flu season.  I'm human, and share this because so are millions more.  Made just a bit easier, I may have had a different outcome this year.

How about you -- flu shot, yes or no?  

Tuesday, January 15, 2013

Elderly Couple Dies, Home Robbed of Valuables, Wills, and Deed

Image credit: - free image

Instantly I know a question that will be coming my way in the next few months -- where should I keep my will?  My home may not be safe.  Remember that elderly couple from Wisconsin who died and then had their home robbed, thieves taking their wills, deed, and other property?

The answer will be simple -- if you are not comfortable keeping it at home, consider filing it with the Register in Probate of your County.  I have blogged about this process in the past, and it is an affordable and safe way to keep one's will.

The story referenced above caught my attention for several reasons.  It is not often that I hear my first name in the news, Melinda is not all that common (although she spelled it Malinda, with an "a" not an "e").  But more importantly it underscores the need to keep wills safe and secure.  Many think a safe deposit box is the answer, but I see that cause more problems than solutions, and it is an expensive approach.

Most likely this story is an outlier.  But it allows me to offer the following tips:

  • keep private matters private -- avoid posting on Facebook and other social media that loved ones are away from home (hospital, vacation, etc).  You wouldn't broadcast this information on the evening news, so don't share in on the web;
  • store documents in a location that is known by only those who need to know (i.e. agent for power of attorney, personal representative named in the will);
  • consider filing your will at the courthouse in the county you live;
  • ask neighbors or friends to check-in on homes that are vacant (also during the time of a funeral or visitation).

Thanks for reading, and remember a blog is not your lawyer.  Please consult a licensed attorney in your state for advice specific to your situation.

Monday, January 14, 2013

Dying Wish Granted, Screening of New Star Trek Movie

Reading one of my favorite blogs last week I noticed this short post about how a Star Trek fan with a terminal cancer was granted his wish to view the yet-to-be-released film Star Trek Into Darkness.  Playing out almost like a script out of Hollywood, the cancer patient passed away one day after viewing the film.

Official Teaser for the upcoming film

All too often the work I do and stories I read are full of sadness and loss.  Something about this story puts a smile on my face.  Knowing that the powerhouse of Hollywood took a chance and shared a film with a life long fan reminds us the simple joys we can give to others.  And being married to a huge Star Trek fan I know that such an act fits well into the Stark Trek enterprise (as in brand, not the ship).  I also now know that a new film is coming, and I best find out its release date and put it on our calendar as we will be required to be there.  The only unknown is whether our son will be old enough to join us in line.

Given the chance, what would have been your wish if you were in this man's shoes?  My personal choice would be to any forthcoming book published by Wally Lamb. I don't know of any at the moment, but wow that man can write!

Friday, January 11, 2013

And the Federal Estate Tax Exemption for 2013 Is....

$5.25 Million

As the week comes to a close here on Illness, Death and Taxes for the Middle Class I can leave you with a number.  And that number is $5.25 million, which is the inflation adjusted federal estate tax exemption for the year 2013, as reported recently.  What does it mean?  For those who die in 2013 and have a net worth (including life insurance) that is below $5.25 million, no federal estate tax would be owed by the estate.

The ink is hardly dry on the legislation signed by the President on January 2nd, so please know that details will continue to emerge on this topic.  It is so new that I have yet to see a continuing legal education advertisement arrive in my in-box.  Which means, even if you are below this number, do not dismiss it as an issue entirely.  Especially if you are married, and are near the limit.  There is much to be learned about the new laws of portability, a new tool in the tax box of surviving spouses.

Thanks for reading, and remember a blog is not a lawyer or legal advice.  Please consult with an attorney in your area for advice specific to your situation.

Thursday, January 10, 2013

When a Lawyer Goes Sledding....

January in Wisconsin translates to many things: snow plows, Packer Play-off hopes, golf courses transformed into cross-country ski wonderlands, and kids zooming down hills on sleds.  Of course, three of the four depend on there being lots of snow on the ground (okay, maybe the Packers' Play-off hopes depend on that too).  So when this past weekend we saw the forecast for the week ahead calling for temperatures in the low 40's combined with rain, we knew that Sunday must be a day for sledding.  We had not managed to get the kids out yet this year, and the hill would likely be turned into a expanse of slush and mud with the warm up.

Mission accomplished.  Adorable in their snow suits, hats, mittens and boots, our children squealed with delight as they zoomed down an icy hill into a field of fluffy flying snow.  "Again!" they shouted.  For a good hour we drudged up the hill, and then shot down like a rocket.  We were not alone on the hill, many families with young children joined us in this quintessential Midwestern winter fun.  Laughter rang in the air, but there were the occasional tears and shouts of "watch-out!".  And then there was me, a mother lawyer.

Mothers seem to have an innate ability to sense danger when it comes to our children.  Combine that with a lawyers training to foresee perils, and you can have a rather damp personality on a fun outing.  I did my best to keep my concerns at bay, but they bubbled up when I saw two children, around ages 8 and 6, barreling towards my 4 year old who sat on the sidelines, resting while waiting for us.  Thankfully another parent was close by, and hovered over my son, and pointed for the kids to steer away.  From this I offer several lessons for a happy afternoon on the sledding hill:

  1. It does take a village.  If possible, keep an eye out for vulnerable ones and offer assistance if you can (thank you to the man who hovered over our son!);
  2. Scan the environment -- where are the sled routes, where are the climbing and resting areas, are there any huge bumps, made of ice, that will generate a lot of "lift", etc.
  3. Follow the rules -- sled down the established routes, and do your best to avoid the climbing and rest areas;
  4. Instruct the little ones in your group to follow the rules.  Caught up in the fun, they may not be thinking about what would happen if they ran into a small child; and
  5. Plan before you go.  Click here for more tips on keeping kids safe while sledding.

M. Gustafson Gervasi, 2013 -- note, he is not wearing a helmet....some kids were.  
So I am not the most worried parent on the snow hill!

Winter Re-writes of Middle Class Philanthropist

Take 2!  January 2013 is devoted to my re-writing the draft of my upcoming book, The Middle Class Philanthropist: How anyone can leave a legacy.  Circling in my mind are stories of simple gifts that made a difference, tax advantages and legal definitions, and the positive health impacts attributed to being a generous person.  In the mix of it all are a few quotes I will highlight in the book.  One of my favorites is below.  Philanthropy, it is not just for the mega-rich.  

"Philanthropy flows from a loving heart, not an overstuffed pocketbook." - Douglas Lawson

Do you have a favorite quote about living a philanthropic life or have a story to share?  If so, please leave a comment.  And thanks for reading!

Wednesday, January 9, 2013

Following the WPS Health Insurance Blog

Ever the bookworm, my love of reading includes the world of blogs.  I read them, comment on them, and write one (and occasionally two).  Recently added to my blog list here is a new one, created by WPS Health Insurance.  It's creation came to my attention when reading the Winter 2013 Quarterly Flier put out by the company.  WPS is the provider for my family -- we have an individual rather than group policy.  Don't know the difference, check out their blog post explaining the difference.  I think I will get a lot of use of site as I am always curious about how to improve our health, prevent accidents, and follow developments in the business of health care.  

How about you -- what are your favorite blogs?  I always love finding new sources of reading material.  So please leave a comment with a link and I will take a look.

Tuesday, January 8, 2013

IRA Gifts to Charity

With the sign of his name, the President brought several significant changes to the world of estate planning and probate. Yesterday I shared with you updates to the federal estate tax.  Today I am pleased to cast the limelight on the topic of IRA gifts to charities.

Since 2006 there has been an on again, off-again tax break for folks aged 70.5 and older, which allowed them to make a gift from their IRA (ROTHs excluded) directly to a charity.  The distribution was not considered taxable income for the IRA holder, and the charity did not pay a tax on the gift either.  And on January 2, 2013, when the President signed the American Taxpayer Relief Act of 2012 into law, it once again turned this law on.

Under the law, those qualify have until January 31, 2013 to make a gift to a charity and have it count towards a 2012 distribution.  And distributions can be made for calendar year 2013 as well, and are capped at $100,000.

So, if you are 70.5 or older, have large balances in an IRA, and wish to make a charity's day, I highly recommend you consult with your attorney and or CPA about how this law impacts your life.  Thanks for reading, and I'll be back tomorrow with more on illness, death and taxes for the middle class.

Monday, January 7, 2013

Permanence and the Federal Estate Tax!

Snow covers the ground outside my home office window, a large cup of pipping hot coffee is at hand, and a stack of articles related to the American Taxpayer Relief Act of 2012 have been read.  Yes, it is January in Wisconsin for this estate planning and probate attorney.

After reviewing the news coverage of the bill, one word jumps out at me - permanent.  Can that be?  Has Washington, D.C. granted me my holiday wish?  Did they not kick the can another two years, but rather write and pass legislation that has solidness to it?  Apparently they did.  Miracles can happen dear reader!

So, if you are eager to learn more about the landscape of federal taxation, here are some highlights:

  • the federal exemption levels we had used in 2012 were made permanent, and are/will be indexed for inflation;
  • adjusting for inflation, the federal exemption level for 2012 is $5.12 million per person;
  • the IRS has yet to release the indexed federal exemption for 2013;
  • decedents with a net worth exceeding the federal exemption level will face a 40% tax (on the amount exceeding the exemption); and
  • portability for surviving spouses is now permanent, allowing a spouse to preserve a first spouses exemption even after death, via an estate tax return filed within 9 months.
The ink is still wet on this piece of law, and the continuing legal education courses have yet to be held.  As we move through 2013 and beyond I will continue to post on changes and updates related to the federal estate tax.  Yes, some of us actually enjoying reading and thinking about these issues.  The rest of you -- get out there and focus on your new years resolution.  Thanks for reading, and remember - a blog is not an attorney.  Please consult a licensed attorney in your state for advice specific to your situation.

M. Gustafson Gervasi, 2012 -- winter arrives in Madison, Wisconsin

Friday, January 4, 2013

Increase in "Green" Cemetaries

Image credit: - free image

Earlier in the week I blogged about the top 13 resolutions of 2013.  Number -- was about reduce, reuse and recycle.  From which I wonder, how many are willing to opt for a greener burial than what has been the most recent tradition?

As noted in this story by Minnesota public radio, the number for green cemeteries or cemeteries that offer a more green option, is increasing in the United States.  My guess is that the increase was likely driven by the combination of more environmentally aware consumers as well as motivation to spend a little less on the cost of a funeral.

How about you?  Does this idea appeal to you?  If so, please share your thoughts.  Many of my clients want to learn more about the option, and that is why I have materials related to the Farley Center (Verona, Wisconsin) located in the waiting room of my office.

Thanks for reading, and I will be back next week with more thoughts on illness, death and taxes for the middle class.

Thursday, January 3, 2013

When There Is A Will, But No Probate, What To Do...

There is something about this time of year that causes my phone to ring a bit more often.  Sure, there are the new years resolution calls from folks who are finally going to write a will.  But there also seems to be uptick in my new probates.  Winter, especially here in the Mid West can be harsh, too harsh for those who are older and ill.  During those phone calls some may ask -- my spouse died, is there anything I need to do?  Of course, being a lawyer, my response is "it depends".  No one situation is the same, but when a person has died it is important to asses the situation and determine what steps should be taken.

M. Gustafson Gervsi, 2012.  Winter arrived in Madison late in December. 
While lovely, it can also prove too taxing for those who are older and or ill.

For example, it is not uncommon for a person to die and there be no need to open a probate, especially in the case of married couples.  Through joint tenancy and beneficiary forms most if not all assets will likely pass to the surviving spouse.  However, even though no probate is needed, if a will existed, the person in possession or with knowledge of a will's whereabouts is required under Wisconsin law to file that will with the appropriate probate court.

856.05 Delivery of will to court.  (1) DUTY AND LIABILITYOF PERSON WITH CUSTODY.  Any person, other than a person namedin the will to act as personal representative, having the custody ofany will shall, within 30 days after he or she has knowledge of thedeath of the testator, file the will in the proper court or deliver itto the person named in the will to act as personal representative.Any person named in a will to act as personal representative shall,within 30 days after he or she has knowledge that he or she isnamed to act as personal representative, and has knowledge of thedeath of the testator, file the will in the proper court, unless the willhas been otherwise deposited with the court.  Any person whoneglects to perform any of the duties required in this subsection,without reasonable cause, is liable in a proceeding in court toevery person interested in the will for all damages caused by theneglect.(2) DUTY OF PERSON WITH INFORMATION.  Any person havinginformation which would reasonably lead him or her to believe inthe existence of any will of a decedent of which he or she does nothave custody and having information that no more recent will ofthe deceased has been filed with the court and that 30 days haveelapsed after the death of the decedent, shall submit this information to the court within 30 days after he or she has the information.(3) PENALTY.  Any person who with intent to injure or defraudany person interested in a will suppresses or secretes any will ofa person then deceased or any information as to the existence orlocation of any will or having custody of any will fails to file it inthe court or to deliver it to the person named in the will to act aspersonal representative shall be fined not more than $500 orimprisoned in the county jail for not more than one year or both.(4) LIABILITY FOR NEGLECT.  If any person has custody of anywill after the death of the testator and after a petition for administration has been filed, neglects without reasonable cause to deliverthe will to the proper court after he or she has been duly notifiedin writing by the court for that purpose, he or she may be committed to the county jail by warrant issued by the court and therekept in close confinement until he or she delivers the will asrequired.(5) APPLICABILITY OF SECTION.  This section applies to willsand information needed for proof of a missing will under s.
This means that if your spouse passes away and no probate is needed, it is a good idea to file the original will with the probate court in the county of residence along with a letter stating no probate is needed.  This will allow it to be filed and comply with statutory requirements.  Note, the statue has a 30 day requirement.  However, I have worked with cases where a will was not filed until nearly 10 years after death. The court does not make an issue out of it, but it could if an interested party felt wronged.

Remember, a blog is not an attorney and this does not constitute legal advice.  Please consult an attorney in your state for advice specific to your situation.

Wednesday, January 2, 2013

Welcome 2013!

It's here, a new year.  And along with switching to a new wall calendar, I like millions of others will begin 2013 with a resolution for my legal practice.
In 2013 I vow to form Team Gustafson Law Office for the Annual Heart Association Heart walk and raise $2500.  That will more than double the amount I raised as an individual walker in 2012.
There you have it....keep reading and see if I make my goal.  The 2013 Heart Walk for Dane County Wisconsin is scheduled for Saturday, October 5th (oh how I love other Type As who plan over a year in advance!).

Image by M. Gustafson Gervasi, 2012

Why the heart walk?  It has long been a favored non-profit organization due to the nearly 25 years my mother has fought heard disease.  And just in the past few months my father-in-law has joined the ranks for those battling heart disease.  And beyond those who suffer later in life, there is the constant knowledge that a dear friend of mine has nursed her son since before he his birth.  Many are born with severe heart complications, and thanks to the wonders of science and medicine grow up and are able to play soccer and lead a healthy, active life.  But we can always do more, do better, help more people.  And that is why I will walk once again this year.  Feel free to join me on walk day, or to make a donation!

Tuesday, January 1, 2013

Top 13 Resolutions for 2013

According to, the following are the top 13 New Year Resolutions for 2013.  Does yours make the list?  I am a little surprised not to see "set up will" or something of that nature.  It never fails, just after the new year my phones starts ringing. Folks on the other end all say the same thing, "this is the year I am going to set up a's my resolution!".

  1. Drink less alcohol
  2. Eat healthy food
  3. Get a better education
  4. Get a better job
  5. Get fit
  6. Lose weight
  7. Manage debt
  8. Manage stress
  9. Quit smoking
  10. Reduce, reuse, recycle
  11. Save money
  12. Take a trip
  13. Volunteer to help others