Monday, May 26, 2014

Memorial Day & In Flanders Field

It's May 26, 2014, Memorial Day here in the United States.  Symbolized by vibrant poppies, it is a day to pause and remember those who have their life in battle for the values American's hold dear.  Today I will be with my family, enjoying the start of summer customs but also taking a moment to reflect.  With children just shy of age 6 and 4, I plan to share with them this poem, from with the symbol of poppy grew, I leave you with a reading of In Flanders Fields.

Monday, May 19, 2014

Have Children But No Will With Guardianship Nomination? Watch Cinderella And Find Motivation To Get It Done

As the parent of preschoolers it was bound to happen, the request to watch Cinderella.  Never a huge fan of Disney movies due to the fact they always manage to kill off the mom, I had kept these films from our kids. But now, on the cusp of turning 6 and 4 they had heard enough from classmates to request a viewing.  A free DVD was up in our closet, a long ago gift from family.  So, this past Mother's Day weekend, as the heavens unleashed a Spring storm over Madison, I curled up with my kids and husband to watch this classic film.

Almost immediately my husband turns to be, and with an amused but shocked expression on his face, mouths "it's an estate planning problem!"  And so it was, on my day off from work here I was watching a film with the type of situation I walk clients through on a daily basis.  If you die, and then your spouse dies, who will take care of your children and the funds you leave behind?

Guardianship, it's a key sticking point for many parents of young children.  Indecision or an inability to face their own mortality keep this question from being answered.  Thanks to Cinderella I can safely say, planning is not nearly as bad as not having a plan should the unthinkable happen.  If you need a starting point, here are a few questions I would offer -- as a mom myself -- for your consideration:

  1. Who shares your values?
  2. Who is close to your child(ren)?
  3. Who has the ability to welcome your child(ren) into their life and home?
  4. Is the same person as equipped to handle funds you leave behind (i.e. life insurance, retirement, home equity, etc.)?  Remember, someone who might be great with children may not be skilled at financial matters.
  5. Who shares your views on religion, education, lifestyle, and finances?
  6. Consider those in your circle of family and friends -- you are not required to name a blood relative.  More often than not family shares your life but not your DNA.
  7. Have a backup plan, who is your second choice.
  8. If you are considering a couple, ask yourself which one would you choose if that couple divorced? Given the divorce rate it is an important factor to consider -- is the one person sufficient, or was it the couple that made the deal in your mind?
And I could go on and on, but that is for you to consider and speak with your attorney.  Remember, a blog is not legal advice.  Rather it is a forum for discussion.  The same week I watched Cinderella I also read a news story about a women who had created a plan for her houseplant -- one that will likely long outlive her.  This woman had planned for a plant!  Yet how many parents have not asked, what happens if were not here.  Need more motivation?  Watch Disney's Cinderella and you'll likely be prodded in the right direction -- make a decision, and make it legally binding.  Thanks for reading, and have a great week.

Monday, May 12, 2014

But My Banker Said It Was Okay.....Unauthorized Practice of Law

Weekly, if not daily, I find myself in a verbal or email conversation with a client in which I am having to explain why want they have done, or think they can do, is not a wise option.  Frustration on their part is evident.  Why am I telling him or her no when his or her banker, financial planner, sister, or fellow bus rider said they could.  Because I'm their lawyer, that is why.  They accept it, and I feel for them.  Why does it have to be so hard?  Because things get complicated quickly.

Add another person to your bank account?  You may have just stepped on the gift tax.  The IRS will not care if the banker suggested this move and thought it was okay.

Manage to add your daughter's name to the deed of your condo?  What happens when she dies, gets sued, files for divorce or bankruptcy?  Your financial planner probably never brought those scenarios up before encouraging you to get a quit claim deed to make the change yourself.

Relatives descend like a turkey vulture on grandma's house within 36 hours of her passing, there to "claim" what she said would be theirs.  The County Sheriff or DA will likely not care what Great Aunt Mary said when suggesting you all go in and clear out the house.  Theft from an estate is theft.

Most people, especially your financial team, aim to help, but inadvertently give poor legal advice.  As I say in my seminars, it is less expensive to get advice from a lawyer before you act rather than  hire one to clean up a mess.   Unlike your banker, lawyers are authorized to practice law.  Those who are not engage in the unauthorized practice of law:
Every jurisdiction in the United States recognizes the inherent right of individuals to represent themselves in legal matters. In contrast, the privilege of representing others in our system is regulated by law for the protection of the public, to ensure that those who provide legal services to others are qualified to do so by education, training, and experience and that they are held accountable for errors, misrepresentations, and unethical practices. 
Thanks for reading.....and note that a blog is not legal advice.  Please consult your attorney for advice specific to your situation.

Monday, May 5, 2014

Changes In Wisconsin Trust Law

The author's inquisitive older child.  One who also loves to learn and ask questions.  Possible scientist, possible lawyer?  Time will tell.

Why did you become a lawyer Mama?  This question was posed to me as my oldest child settled into bed last week.  Two reasons: I wanted to help people, and I love to learn.  Law allows me to do both of those things.  He floated off to sleep and I went down the hall to the computer where to process the end-of-the-day emails that routinely pile up from 3:30pm until the fall to sleep, a time I devote to my young children.  Waiting in the email was a reminder about an upcoming Continuing Legal Education seminar offered by the Wisconsin State Bar.  It is a good thing I like life-long learning, because according to the flier -- everything we knew about trusts in Wisconsin is about to change.  Here is a quick overview of why, put together by my associate......who has already attended the seminar!

 2013 Wisconsin Act 92 goes into effect on July 1, 2014. This law replaces Wisconsin's current trust statutes with the Uniform Trust Code, and also adds some additional provisions. Some of the most notable and relevant provisions of the new trust law are discussed below.

    1) The new law arguably diminishes the court's oversight of trusts. For example, there will no longer be continuing judicial supervision of a trust unless an interested person files a petition with the court for such supervision to occur. Additionally, there is no longer an annual account filing requirement for testamentary trusts.

    2) Pet trusts are now specifically allowed.

    3) The default rule is that trusts are revocable. In order to be irrevocable, the trust must specifically state that, or it will be presumed revocable. This rule only applies to trusts created after July 1, 2014 

    4) The new law allows for nomination of a "trust protector." This is someone who is given power over the trust, but in a different capacity than the trustee or other directing party. The trust protector's powers must be stated in the trust. In general, the trustee must follow the direction of the trust protector unless doing so would constitute a serious breach of duty.

Watch for more as the new trust law unfolds here in Wisconsin.  Have a great week, and please remember that a blog is not legal advice.  Consult an attorney in your state for advice specific to your situation.