Want to Scare an Attorney? Mention Legal Malpractice

M. Gustafson Gervasi, 2012 -- Author's son in 2012 Halloween Costume

Lawyers go to school for a long time, and once they become an attorney they are usually required to continue attending legal education classes every year.  Here in Wisconsin attorneys are required to attend 30 hours of continuing legal education, three of which must be ethics credits, every two years.  As my reporting year draws to a close I have been attending quite a few seminars this fall.  And the topic that uniformly makes the hairs stand up on the arms of an attorney is legal malpractice.

Just like medical doctors, attorneys can be sued if they fail to provide a client with competent representation. Have you ever found yourself at a social event talking with someone who is an attorney, and your mind jumps to a legal issue from your life?  Chances are you said "hey, your a lawyer!  What should I do about x, y, or z?"  If the attorney was wise, he or she would have said one of two things:

• "Excellent question, but this is not the proper place to talk.  Why don't you call me Monday to set up an appointment", or
• "Interesting situation, but it is outside my area of practice.  Why don't you contact my friend who works in that area, or, try the State Bar referral service."

A response of this type should not offend you because the lawyer is following proper guidelines.  It is true that quality legal analysis and advice cannot be given at a neighborhood picnic.  And just because someone attended law school does not mean he or she is equipped to advise you on the ins an outs of estate planning. I often joke -- would you want your allergist to perform your c-section?  Money does not need to be exchanged for a lawyer to trigger a relationship in which he or she can be sued for malpractice.  Here in Wisconsin all it takes is the client relying on the advice.  

Thanks for reading, and enjoy this week of tricks and treats.  And remember, a blog is meant for educational purposes.  It is not legal advice and should not be relied upon -- please consult an attorney in your state for advice specific to your situation.

Book Release -- Middle Class Philanthropist: How anyone can leave a legacy

It is with great joy that I announce the pending release of my first book publication, Middle Class Philanthropist: How anyone can leave a legacy. It will be available for purchase November 1, 2013.

Predating democracy, capitalism, organized religion, and as old as humanity itself, philanthropy exists because things often go wrong, and things can always be better in our world.  Nothing about philanthropy requires a person to have excessive amounts of money to make a difference.  In Middle Class Philanthropist: How anyone can leave a legacy, Melinda Gustafson Gervasi redefines the conventional view of philanthropy, providing simple and practical tools by which anyone can leave a legacy.


Purchases can be made by clicking on this image of the book cover.

Identity Theft of the Deceased

M. Gustafson Gervasi, 2013

Not even death can protect someone from having his or her identity stolen.  In fact, death may just make it easier.  Last week I attended an interesting seminar on identity theft, which generates over$20 billion in lost dollars a year.  Florida tops the list for offenders and my home state of Wisconsin ranks 31st, but not matter the state of residence it is an issue for surviving loved ones to consider.

According to the presenter, a representative from Wisconsin's Office of Privacy Protection, there are various types of identity theft.  There is the obvious, financial, where someone runs off with your funds or makes purchases under your name.  But there is also theft of a child's identity, often not uncovered until the child reaches age 18 and sets off into the world to discover someone has been using his or her SSN for years. There is medical identity theft, where a thief uses your medical insurance  And in the case of the deceased, a thief picks up where you left off.

For those tending to a deceased loved ones estate, the speaker offered the following tips:

• file a final income tax form as soon as possible to prevent a thief from redirecting a refund to his or her address;
• turn in a drivers license to the DMV;
• property dispose of other ID cards and the SSN card;
• contact all credit cards and other lending organizations and shut off the account

Please note, a blog post is not legal advice and should not be relied upon. Rather, it is a vehicle for education and discussion. You should contact a lawyer in your state for advice specific to your situation.  Thanks for reading.

October 21st Begins National Estate Planning Awareness Week!

Earlier this week I teased my associate on what was her last day in the office before taking time off for her wedding and honeymoon -- oh, you'll be relaxing in Costa Rica next week and miss National Estate Planning Awareness Week!"  We both gave a soft laugh, and then returned our focus to the ever important work we perform assisting clients with the creation, update and execution of estate planning documents. Looking ahead to next week I wonder how many people will recognize that this is an issue for every American?

No matter your net worth, every one of us will face illness, death and taxes.  All to commonly I hear people quip "I don't have much, so I don't need an estate plan!"  If only they knew what I knew, their answer may be quite different.  Estate planning is not solely an issue for those wishing to preserve a family fortune, it is for anyone who desires to take control of what happens when he or she falls ill and/or dies.  Consider the following:

• A single women in her 20s dies from a prescription complication-- where will her wrongful death settlement go?
• An elderly man who never married suffers a stroke, leaving him unable to return to his condo and five year old cat -- where will the cat go?
• A women in her 40s who is partnered but not married, succumbs to the breast cancer she has fought for a decade -- who will become the guardian of her two young children?
• A man who was widowed at 55, remarried at 60, and then dies at 72 leaves behind a home and a lifetime of investments -- where will they go, the children from his first marriage or his current wife?

None of these hypothetical situations are a stretch of the imagination -- all are real life examples from my practice.  Life happens, including sad and tragic events.  By updating or creating an estate plan you are taking control of very delicate matters.  And if you do not, you leave the answers up to the courts and other powers that be.  

As always, a blog is intended to stimulate conversation and raise important issues.  It is not legal advice and should not be relied upon.  Please seek counsel from a licensed attorney in your state.  And thanks for reading!

Looking Ahead to 2014 - Gift and Federal Estate Tax Limits

Image by M. Gustafson Gervasi, 2013

Fall colors may be at peak brilliance as I type, but our friends at the Internal Revenue Service have already thought ahead to calendar year 2014.  When January 1st arrives Americans should keep two things in mind.

First, the federal estate tax exemption will increase to $5,340,000, up from $5,250,000 in 2013.  What this means is any one person who dies in 2014 with an estate worth less than $5,340,000 does not need to worry about an estate tax.  Those who have a net worth in excess may face a federal estate tax being applied to any amount in excess.  Note, exceptions are married for married couples as well as those naming nonprofits in their estate plan.

Second, the world of the gift tax will not change.  Unlike the federal exemption, the amount will not increase in the new year and will remain at $14,000.  An important number to keep in mind when gifting assets.  If the amount you gift to any one person in that calendar year is less than $14,000, no tax is owed by the gift maker.  Gifts that exceed the amount are likely subject to the tax, barring special circumstances.

As always, a blog is not legal advice and should not be relied on given the ever changing legal word.  It is meant to spark discussion and promote education.  Please consult with an attorney prior to taking any action.
Thank you for reading, and have a great weekend.

The Importance of Paper in a Digital World

Image by M. Gustafson Gervasi, 2013

Paper -- it is becoming a relic in many parts of modern society.  Thanks to the digital world, fewer and fewer people receive and/or keep hard copies of important papers.  However, in the world of estate planning, I think that is a huge mistake. 

For example, take the case of beneficiary forms associated with either life insurance policies or retirement accounts.  Routinely I advise clients to keep a hard copy of each form with their estate plan for three reasons:

1. Printing it out and reviewing the form confirms that the form says what you think it does.  If not, and someone is named that you no longer wished named, you have a chance to make updates. Remember, what is on the form controls no matter what a will says;
2. The form is proof that at one time you did indeed have a beneficiary listed, directing the asset to an heir outside of the probate process.  Organizations can and do loose beneficiary forms.  Do not count on them to keep good records; and
3. The forms create a paper trail for loved ones about the various locations at which you held assets.  Along with the digital age as come job and career jumping.  It is not uncommon for a person to die with five or more different retirement accounts, all at different institutions.  Those forms clearly show your loved ones where to go when needed.

Please remember a blog post does not constitute legal advice an attorney client relationship.  A post is designed to spur thought and discussion, but cannot be relied on given the ever changing nature of our legal world.  Thank you for reading, and please consult an attorney for guidance on your specific situation.