Estate Planning in the Age of Misinformation

Estate Planning in the Age of Misinformation

By Melinda Gustafson Gervasi

June 7, 2021

As the academic year comes to a close, I reflect on the many concepts my children studied during a year of virtual learning.  Math has gone from numbers the symbols used in geometry and algebra and social studies as moved beyond memorized State Capitals to more in-depth critical analysis skills.  Primarily the validity of source information.  

As my daughter finishes her elementary school years I read along as she studied the last novel of her 5th grade education -- The Westing Game by Ellen Raskin.  Published by Puffin Modern Classics in 1978 the book plunges the reader into a mystery surrounding the will of an eccentric millionaire who lived in town.  Sixteen named heirs compete with each other to determine who killed the testator, Sam Westin, with the winner set to claim the $200 million estate.  Well I wasn't 5 pages into the book and rolling my lawyer eyes at the absurd "legal proceedings".  I set aside my critical eye, enjoyed the fiction for what it was, and had lovely discussions with my daughter as her class read along.  However, it hit me that 5th graders are reading about estate planning and probate with no disclaimer that it is utterly false.  From a very young age the general public is fed information on an area of law that touches every single person's life.  

As you gather information for yourself on estate planning and probate, I urge you to pause and consider your source.  For example:

• Your lovely younger sister who lives in New Mexico tells you, a Wisconsin resident, all about the process she used to set up an estate plan.  Remember, estate planning and probate laws are written by STATE legislatures.  That means we have 50 different sets of laws on this topic.  While some concepts may be the same, the laws are likely quite different
• The banker you have worked with for the past decade keeps nudging you get a living revocable trust.  While he likely means well, he is not a lawyer.  Routinely I work with clients to untangle a mess of joint accounts or beneficiary forms that do not follow their wishes, but were recommended by a financial advisor/banker.  Take the suggestions into consideration, but check with an attorney before signing any documents.
• Acknowledge it's fiction when you are watching a movie, TV show, or reading children's books (they always kill off the mom!).  What makes for entertaining or suspenseful writing does not make it legally sound. 

Image by M. Gustafson Gervasi 2021

Best wishes for your summer.  Thank you for reading. Remember that a blog is meant to spark thought and discussion.  It is not legal advice nor is it your lawyer.  Always consult with a licensed attorney in your home state for advice specific to your situation.

From The Headlines: Famous Actors Die Without a Will

From the Headlines: Famous Actors Die Without a Will

By Melinda Gustafson Gervasi

December 29, 2020

The year 2020 stoked our awareness of immortality.  The entire world became painfully aware that even the young, strong and healthy could fall victim to Coivd-19.  Yet, while there was a spike for estate planning services, 62 percent of Americans still do not have a will.  And it is not just the average American without these essential documents; the wealthy and famous are members of this group of procrastinators.  

At age 43, Chadwick Boseman (most recently known for his role as The Black Panther) died after a several year battle with cancer.  He died without an estate plan.  Then on November 27, 2020, Tony Hsieh (age 46) died due to smoke inhalation.  He also died far too young, and without an estate plan.

Intestate, when you die without a will, means that state legislation and a judge's oversight will dictate where your probate property will go.  Probate property is anything you own with no co-owner or named beneficiary.  Not creating a plan is likely not caused by a lack of resources, even Prince, who died in 2016, who took extreme legal measures to protect his music died with no estate plan.

So why the lack of action?

• believing you are too young to die
• thinking you'll dodge death by not planning for it
• avoiding the unpleasant topic of your demise
• having no clue where to even start wrapping your mind around the topic

Does the reason for avoidance really matter?  The point is, make a plan and take control.  Read more about the artists mentioned here and you'll uncover a trove of information about excessive taxes, family infighting, and wishes that never materialized.  As we welcome the New Year, consider where the proper place on your To-Do-List the task "create (or update) an estate plan" should fall.

Thanks for reading.  Remember that a blog is not legal advice; it is meant to spark thought and discussion.  Always seek legal counsel from an attorney licensed in your state of residence for advice specific to your situation.  Best wishes for 2021.

Worst Case Scenario and a Flock of Wild Turkeys

Glancing out my kitchen window early this morning, coffee in hand as I kick-started my day, I noticed "the boys" were in our driveway.  Over the summer months a flock of 5 to 7 wild male turkeys became "the boys" in our household as they made daily visits and precarious crossings of the fast moving artery on which we live.  Out of the corner of my eye I noticed my husband was set to leave for work, it was a great day for his 8-mile commute along Madison's bike paths.  Without thinking I warned "be careful when you take your bike out, when "the boys" get confused they run in circles and the last thing we need this morning is a couple of turkeys dashing into our garage!"  As we move into our 14th year of marriage my husband has grown accustomed to my dire predictions, yet today he raised his eyebrows just enough to convey "really Melinda, what are the chances?"  My standard response "Well, you married a lawyer.  I was trained to predict the worst case scenario and plan backwards!"  His bike commute started without incident, and no turkey dashed into our garage.  But hey, I was ready for them if they did!

At work, worst case scenario thinking is an asset.

Worst-case scenario is a concept in risk management wherein the planner, in planning for potential disasters, considers the most severe possible outcome that can reasonably be projected to occur in a given situation.  

As an estate planning and probate attorney I know that no one is immortal.  Client meetings start with a discussion what will happen upon the client's death.  Then what happens if the client's heir(s) predecease the client.  "Hmmm, I never thought of that!" is a common client comment.  And that's my job, to think of the scenario they have not.  Without a contingency plan (or two) State Statues may be the default distribution method for their estate, and that can be problematic.  Do you really want the brother you haven't spoken to in a decade to inherit if you children do not survive you?  What would it mean if you sister, who survived a horrible motorcycle accident and is now receiving care through Medicaid, might inherit?  It's a way of thinking that clients seek out, and spouses find mildly amusing when a brain envisions a flock of wild turkeys running into our garage.

Thanks for reading.  As a reminder a blog is meant to spur thought and discussion, it is not a source of legal advice.  Please consult an attorney licensed in your state of residence for legal advice specific to your situation.  And beware of urban turkeys!

Written by Melinda Gustafson Gervasi
Oct. 3, 2019

Beneficiary Forms Gone Horribly Wrong

Beneficiary Forms Gone Horribly Wrong.
By Melinda Gustafson Gervasi

Within the legal community there is a decent amount of discussion about whether or not our professional lives will be usurped by on-line and digital platforms.  Days like today reassure me that my professional life has a few good years, decades even, before a software engineer codes me out of business.

Take life insurance and children for instance.  New client call comes in.  Brief biographical information is provided related to: marital status, children, and financial instruments.  In short, caller is single with a minor child and his best friend from college is named as beneficiary of the life insurance because friend is a responsible adult who will do the right thing.  An actual attorney will likely hear this and say, "wait, tell me that again please" as her eyebrows rise higher on her forehead.  In contrast, your standard online will-writer will prompt "check here if you have named a beneficiary on your life insurance.". 

In my humble opinion, when you name a beneficiary who is not the person benefiting from the money you are making a big mistake.  Big.  Huge!  Why?  That money goes to that person, no strings attached.  And sure, most of the time that person is trusted and will do the "right thing".  However, if they give too much money to person the money was really meant for, they make get slapped with the federal gift tax.  Moreover, what if trusted friend goes through a divorce, dies, or gets sued?  That life insurance money, meant for someone else, will be caught up in the friend's mess.

This is the perfect example of why a lawyer still provides greater benefit than an online system.   When something does sound right, we'll raise our ears up and dig into the details making sure a huge mistake has not or will not occur. We can work around that pit of a mess and provide far more uniquely crafted documents.

Thanks for reading, and always, remember a blog is meant to spark discussion and should not be taken as legal advice.  Moreover, we have 50 different states, each with its own set of estate planning and probate laws.  Always seek the advice of a licensed attorney in your home state, not a blog.

Busting Myths & Misconceptions: Reflections on The Grand Budapest Hotel, a Wes Cravin Film.

Busting Myths & Misconceptions: Reflections on The Grand Budapest Hotel, a Wes Cravin Film.
By Melinda Gustafson Gervasi

From Hollywood to Netflix to TV dramas, legal thrillers remain a popular film genre.  Recently I enjoyed watching The Grand Budapest Hotel, a Wes Craven film.  Set in a fictional remote mountain village somewhere near the borders of Germany, Switzerland, and France, it is a quirky film revolving around the owner succession of a grand hotel. There is the requisite scene for a legal drama: " the reading of the will".  From the deceased's children to her cousins thrice-removed, all assemble in a dark cavernous room, dressed in black, with an attorney at the center of attention.  Here the legal misconceptions leap off the screen:

Except in limited circumstances, the attorney who drafts a will is not the Executor (or what Wisconsin law calls the Personal Representative) of the will;
The will in the movie is a massive heap of papers, of which the lawyer verbally summarizes in a sentence.  Here in Wisconsin a copy of the will is delivered to the Interested Parties (those named in the will, the deceased's next of kin even if not named in the will, and any named nonprofits).  Gathering a cast of characters in a large room where the will is read to them is dramatic but not realistic.
A third scene shows the person who inherited a valuable painting under the will dictating to his assistant a will, under which the assistant will be the sole heir.  In my opinion a will written by the assistant, who is inheriting, is not a wise move.
The movie did contain some accurate points.  First, an amendment to a will is called a codicil.  Second, the attorney for the estate represents the estate. The the attorney does not represent the interests of any interested parties.  That would be a conflict of interest.

This was a fun movie. Just do not take screen plays to be legal advice or education.  If you have any legal thriller books or films with estate planning or probate issues you would like me to comment on in future newsletters, please send me a message!

50 States, 50 Different Sets of Estate Planning & Probate Laws

As Summer 2019 begins its slide towards September our family strives to complete our annual License Plate Game.   It's a great way to reinforce the fact the United States is made up of 50 different states (for our elementary aged kids), all with different plates.....and sets of laws about estate planning & probate.

Unlike federal law, such as immigration, which is the same from Maine to California, estate planning and probate laws are written at the State level.  Leaving us with 50 different sets of laws about who is in charge and where things go upon your death, as well as next of kin's ability (or lack of) to make medical and financial decisions if you are alive, but too ill to act.

Keep this in mind when you are reading materials for a national audience.  For example, mass produced materials about estate planning claim the fee for a court to oversee the transfer of probate assets (those assets that do not have a designation or label on them about where it goes when you die) is 6, 8 even 10%.  While that may be true in some states, it is not true in all states.  Wisconsin has a fee of 0.2%, no where near the fees in other states in the country.

It is also helpful to keep the concept of 50 different states in mind when talking with family and friends who live outside of your home state.  Terms and powers can very, especially in the are of powers of attorney.  You'll find "executor" in one state, and "personal representative" in another.  Both perform the same basic job function.

Please remember that a blog stimulates thoughts and ideas, but is not legal advice.  Please seek counsel from an attorney licensed in your home state.  And may you all experience the trill of finding a Hawaiian plate outside a Wal-Mart in Dodgeville, Wisconsin when you stopped to pick up a fishing license before enjoying Gov. Dodge State Park's summer activities. Thank you for reading.

Probate Completed, Where Are the Balloons?

For the past 12 to 18 months, possibly longer, you the Personal Representative in a Wisconsin probate have gathered papers, filed taxes, written checks, emptied the fridge, sold the car, distributed the family photographs, written more checks, and have your signature notarized more times than you can recall.  And now the day is here, the day you file the FINAL papers to close the estate.  The last bill to the lawyer is paid, you have free time in your calendar once again.  Things settle down into a new routine, the routine after the loss of a loved one, the routine after the work of the probate, and it feels like something is missing. You did it -- yet those filed court papers just slide off into an abyss.  Will you get a mailing from the court, some sort of official notice that you completed this marathon of a task?

If you are a Personal Representative in a Wisconsin probate the answer is simple, no.  There is no fan fare, no balloon drop, no confetti falling from the sky, not even a ribbon saying you crossed the finish line.  All there is is an entry in the CCAP system stating:

"Probate  -- Closed - File Retained Electronic"

That's it.  A one line entry closing out a challenging job completed during emotionally draining times.  Government has limited resources, and likely does not have the capacity to send out a form let alone a congratulations.  But I'll leave one here for you via You Tube -- enjoy, and pat yourself on the back for a job well done.

When An Estate Is Too Small For Probate

It was a Tuesday evening.  Talk radio voices floated through the kitchen air while I prepared dinner.

Host: Welcome Randy from New York, what's your question?

Caller:  Hey, glad I got through.  I've got a question for you.  My aunt died and I'm taking care of her affairs.  She had a retirement account, and a car with a loan on it.  How do I sell the car and pay the loan?

Host: Well, looks like you'll be doing a probate.  Not much there, one retirement account, one car, and a loan you gotta pay before you distribute anything.  Now I'm no lawyer, but seems like you'll have to open a probate.....geesh, unless there is someway around it, but how are you gonna sell the car and sign the title.  Maybe you need a lawyer....

Caller:  Thanks, I'll see what I can do.

Why I thought they'd hear me, I do not know. One, this was radio, and two, it was an archived show. But that didn't stop me: YOU NEED A SMALL ESTATE AFFIDAVIT. STATES HAVE THEM! Not only did my thoughts float into thin air, our family cat who was calming waiting for my dinner preparation to turn toward the cabinet where I keep the moist food, cocked her head in disbelief wondering what her crazy human was doing.

Here in Wisconsin the form is called a Transfer by Affidavit, and can be used when a person dies owning $50,000 or less in probate assets.  Probate assets are assets that have no label or beneficiary form on them indicating who gets them at the owner's death.  Probate assets are distributed via will, or if no will, via state statute.  All states are different, but Wisconsin is not alone in having a simple procedure to oversee the distribution of a small estate without the formality (and length and cost) of a probate proceeding.

I love my financial talk radio, especially shows focused on smart frugal living.  But wow, they get a lot of calls about how to handle wills and probates.  This was not the first, nor will it be the last time I holler into the air of my kitchen with my thoughts on the callers question.  No one really likes a lawyer, but maybe these shows should have one on to answer questions occasionally.

Which Is Faster: A Will or a Trust?

Engine of a Space Shuttle.
 Image by M. Gustafson Gervasi, 2015

"Which is faster, a will or trust?  I just want my family taken care of as soon as possible."  After ten years of serving clients in the estate planning capacity, this is one query that tops of the list of client questions. My answer is often not expected.

"Honestly, whether you use a will or a trust, it doesn't matter. What matters is how organized you are with your final affairs, and more importantly, how organized the person is who you appoint to handle things when you died.  If the person you appoint is crippled with grief, overwhelmed in their own personal life, or simply is an indecisive procrastinator -- then your estate will creep along at a snails pace, trust, will, whatever device you use just doesn't matter."

Personally, I think trusts are a bit oversold.  Here in Wisconsin we have a low probate fee, 0.2 percent of the inventory value.  Other states can be as high as 8.0, 10.0 or even 12.0 percent -- that can easily drive probate costs higher.  Given this, many clients in my office opt for the probate route, using a will which facilitates rather than avoids probate.  When naming a Personal Representative (also known as The Executor in Hollywood as well as the State to our South), I advise choosing someone who:

1. Is neutral and can help maintain the peace in a grieving family;
2. Is good with finances and economical concepts (i.e. reviewing medical bills, completing taxes, selling a home, etc.);
3. Has the time to sort through your bills, contact creditors about final costs, clean out your fridge, sell your car(s), drop off items at the local thrift store, complete final tax returns, and more; and
4. Is able to make a decision and execute procedures.

As you run through the list of family and friends who fill your life and find you  have few or no choices, consider a professional. Banks, trust departments or even the family accountant may all be able to fulfill this role and help achieve your goal of efficiently getting your final assets into the hands of those loved ones you leave behind.

Thank you for reading, and remember -- a blog post educates only and should not be viewed as legal advice.  Please consult a licensed attorney in your home state for legal advice.  

An Overlooked Bequest: Allowing a Garden to Live On

Image by M. Gustafson Gervasi, 2015

Back in July, as irises still bloomed in my garden, I sipped a coffee and glanced at our local free weekly paper The Isthmus.  A story on page 6 caught my attention -- America's longest-serving state legislator, Fred Risser, and his wife Nancy Risser, were profiled for creating an urban oasis in downtown Madison.  Over the years the couple worked to turn an apartment complex parking lot into a lush and welcoming garden.  Towards the end of the article a nugget of estate planning insight jumped off the page -- the bequest of perennials.

Nancy is quoted as saying "A garden is a living thing" after she recounted transplanting iris bulbs from her late-grandmother's home in Texas to the garden here in Madison -- the transplant spurred by Nancy's father's death.  While the focus of this article was about creating and fostering natural beauty in an urban setting, the estate planner in me saw the often overlooked bequest -- bequeathing perennial plants and bulbs.  Are you a gardener or an aspiring gardener?  Not a gardener but yet you hold a loved one's garden in awe?  What will happen to those plants when his or her time comes?

As a daughter who has had both parents pass on, I have transplanted bulbs myself.  Hostas and ferns that once sprang to life every spring and summer at my childhood home now have a place in our family garden.  My children pass them each morning on our walk to school, reconnecting me with my first walk to kindergarten, sparking a memory of carrying a rose from my mother's garden to give to my teacher, Mrs. Hoops.  And the estate planner in me has written at least one will in which the testator has made a gift of his or her perennials, and even much loved house plants.

As the sun sinks lower in the horizon and the northern hemisphere shifts into fall and heads towards winter, leaving plants dormant for the winter, ask yourself; could I?  should I? make a gift of the plants that wait underground for another season of warmth and bloom?  If so, talk with an attorney about how to make it so.

T.P.P. -- An Estate Planning Acronym

Scanning my emails last week three little letters caught my eye, TPP.  Hmmm, what is this organization doing talking about TPP.  Turns out the letters in the email referred to a trade deal known as the Trans-Pacific Partnership, not Tangible Personal Property.  Acronyms are everywhere, and three little letters in one discipline mean something entirely different in another.

Among estate planning and probate attorneys the letter TPP refer to the client or decedent's tangible personal property.  In plain English, his or her stuff.  Items one can pick up and carry, generally excluding cash and vehicles.  Think jewelry, collectibles, furniture, hobbyist gear, etc.  We all have it to some extent or another, and the question often becomes what will happen to it at death.

Should you desire a specific piece to pas to a specific individual, and you have a will empowering you to leave a legally binding inventory distribution list (requirements for vary from state to state) be as specific as possible. Imagine leaving details so specific a stranger could enter your home and know WHAT you are referencing, WHERE it is located, and WHO should receive it.  Compare and contrast the following:

• I leave my ring to my cousin Deb; or
• I leave my diamond engagement ring (see attached photo labeled "a") located in my jewelry box in my bedroom to my cousin, Deborah Thompson, who resides in Minneapolis, Minnesota

Both give the same direction, but one is far more exacting.  We have a much clearer understanding of WHAT ring.  WHERE said ring can be found.  And WHO cousin Deb is.  Sadly it is often the TPP that ignites feuds in the wake of a loved ones death.  Creating a will is one way to take control of the situation by putting in legal terms your desires.  If you have taken this step, push yourself a bit more and be as exacting as possible.

Thanks for reading and remember a blog is not legal advice.  Please consult an attorney for advice specific to your situation.

Derby Cars & Guns: A Facebook Lesson on the Basics of Probate

Have you seen it?  The Facebook photo that says something along the lines of my biggest fear is one day I will die and my wife will sell my guns (or derby cars) for what I said I paid for them! Emphasis being placed on said I paid for them.  Underlying the language is the fact that Facebook user has not been truthful in what was really paid for the items, and you can assume it was more than what was reported to the spouse. Sometimes substantially more.

Pushing beyond the joke, this Facebook post highlights a key element of the probate process.  When an individual dies his or her probate property is distributed via the probate court unless some other instrument (i.e. a living trust) had been created and funded (i.e. assets transferred to the trust from the individual).  A first step in the process is to complete an inventory of all the decedent's probate property.  Things such as a house, vehicle, bank account, and tangible personal property are typical items listed.  A fee to the court (here in Wisconsin it is 0.2 percent) is paid based on the total inventory value.  For those obscure items in your possession at your death, it may not benefit you in the long run to down play the true value.  How will your heirs know what to list if what you initially told them was an understatement?  Something to think about as we head into the weekend.

Takeaway -- one way or another, leave an accurate record for your loved ones to know what you paid for those derby cars, guns, hummels, or antique cookie jars! Thanks for reading, and remember a blog is not legal advice. Please consult an attorney in your state for advice specific to your situation.

Visions of Time Shares Dancing in Your Head.....Probate and Time Shares

Image by M. Gustafson Gervasi, 2013

As visions of sugar plumbs danced in their head........a classic line from a classic book I've been reading over and over again to my young children over the holidays.  And as a polar vortex sweeps over my hometown of Madison, Wisconsin, I am certain many of my fellow residents have visions of warmer climates in their head.  And with it, the temptation of the time share.

Often billed as an affordable way to own a place in paradise, with the common benefit of trading rights in other locations, I see a fair number of estates with a time share asset.  Whether you a creating your own estate or handling the affair of a loved one who has passed, do not overlook the time share!

Time shares are generally considered a real asset, something someone owns.  Meaning it can be sold or bequeathed.  Earlier this morning I assisted a former client who inherited a time share.  Selling it has proved anything but easy.  In our exchange I gave him the name and number of what other attorneys have described as a reputable time share broker. Yes, there are professionals out there who specialize in selling time shares!

In my research, I also came across an excellent consumer guide to time shares, put together by the Federal Trade Commission.  The language is simple and to the point, with excellent practice tips for those considering buying a bit of paradise or for those looking to sell.  The point that stood out the most to me were making certain you understand the fees involved at both purchase, maintenance, and sale.

Please note that a blog is not legal advice, and should not be relied upon, but rather to stimulate thought and discussion.  It is essential that you consult an attorney in your state for advice specific to your situation.  Thank you for reading.

Heirs In Dispute - Sweating Over the Small Stuff

Sibling closeness I, as a mother and estate planning attorney, seek to preserve.  Take control and let them know your wishes.  If not, unpleasant disputes tend to arise.

As the mother of two young children and as an estate planning and probate attorney, I can tell you that the "stuff" in your life is most likely to ignite sibling rivalry when you die.  From jewelry to collectibles to hunting gear -- the items that hold little to no monetary value often ignite the most intense disputes when a loved one dies.

And apparently leaving tangible personal property, what we in the legal practice call your TPP, is the number one thing Baby Boomers care about leaving at death, not money.  Who gets what, that is the essential question.  When I work with my clients documents generally say "I may create an inventory form the disposes of my tangible personal property", if so, the personal representative is obligated to distribute accordingly.  And then I add to the conversation, be specific as possible, envision having to give a stranger directions to find said object.  Glossed over in the Wall Street Journal article, this is key.  When you say "I leave my ring" the attorney in me wonders: which ring, and where is it kept?

Facing your death is not easy for anyone.  But if you are a parent and or grandparent, and you want to preserve the relationship between your children, considering making these decisions and doing the necessary work.  I have seen two brothers who will never speak to one another again because of a chest of drawers, and another client told me "I have cousins who don't speak because of Hummels".

Take control, say what happens, be specific, and work with an attorney to make it legal in your state. Remember, a blog is not a lawyer or legal advice, and should not be relied upon.  It is educational and designed to spur the thinking process.

Leaving Probate Assets Behind...3 Things Not to Forget About

Image credit: www.sxc.hu - free image

Should I ever appear on the game show Family Feud (is it even still on the air) and the question on the big board was "what are 3 things commonly overlooked in a probate?", I'd stand a decent chance of scoring big.  Sure, I love games of all types, but it is my work as an estate planning and probate attorney that gives me insight regular people don't.  When someone dies I see lots of issues develop.  Just ask my husband -- he has been known to encourage me to add a happier area of law to my practice.

But I digress.  What would those 3 things be -- here you go:

1. Storage Lockers.  Thanks to "hit" shows on cable, more people are aware of the fact that storage lockers may contain property of departed loved ones.  And they know if unclaimed, they might be auctioned off.  Still, this knowledge is not at the top of their to-do list when a loved ones dies.  People are grieving, forced to converse with relatives they do not get along with, and in some cases, dealing with final taxes, etc.  But do not over look the storage locker. One, there is likely a monthly bill the estate is responsible for paying.  And two, the items are likely part of the probate estate and should be inventoried;
2. Cemetery Plots.  These small pieces of land are owned by people. Sometimes viewed as "family plots", they are still owned by a person.  And when that loved one dies, steps should be taken with the cemetery to transfer ownership; and
3. Frequent flier miles or other loyalty rewards.  Tucked away in your wallet or stored on your computer may be a frequent consumer number worth thousands of dollars if not more.  When closing the affairs of a loved one, ask yourself if the departed may have had a large account, and if so how can it be located.  Often considered as part of the probate estate, those points may possibly be redeemed according to the terms of the service contract with the company.

Have a story to share about something you overlooked while closing the affairs of a loved one?  Leave a comment and share, it will make me smile.  Thanks for reading, and remember, a blog is not a lawyer.  Seek advice from an attorney in your state for advice specific to your situation.

The Downside to Avoiding Probate

Probate, it is something so many people strive to avoid.  Whether it is dumping everything into a trust or placing beneficiary forms on all of their assets, some people become very diligent about making sure nothing passes through the probate court.

The downside....one still dies with debts.  And how will those be paid if there is no probate.  A properly drafted and funded trust would take care of this issue, but a do-it-yourself patch work quilt approach may leave gaps.  As it did for the family in my office today.

The recently deceased parent title property jointly with children.  The various life insurance policies had beneficiary forms.  But probate will likely occur to create a neat and clean manner to sell vehicles, pay funeral bills, medical bills, cell phone, bills.

In the end, organization saves more time and money than whether something is probate or not.  We just scratched the surface on the number of phone calls we have to make to track down all of the parents' assets.  This is going to take time, and cost money.

So, if you want to save your children hassle upon your death, organize and leave clear notes.  It will pay off in the end.

Remember, a blog is not an attorney.  Please consult a lawyer in your state for advice specific to your situation.

Three Ways to Avoid Probate Without a Living Trust

Image credit:  www.sxc.hu - free image

If you are over a certain age you probably receive routine cards in the mail inviting you to the local hotel for a free chicken dinner and a seminar on how to avoid probate via a living trust.  These instruments are pushed, often by sales people who are not attorneys, mainly because they are lucrative.  Proceed with caution.

When I work with clients I use trusts only when the fit the situation and I feel the client has the sophistication to manage the inevitable tax issues that will develop.  Most people do not want the hassles associated with trusts, but want to avoid probate.  If so, our conversation centers around the use of:

1. Transfer on Death Deed for real estate.  Not all states have this option, but we do in Wisconsin.  It is a label placed on a deed that states who should inherit the property upon the owners death.  Probate is avoided, and a small filing fee is paid to the register of deeds.  It does not fit all situations, but it appealing for many clients;
2. Pay on Death Cards.  Available for bank or credit union accounts, it is a label you can put on bank accounts that gives the remaining funds to the person(s) upon your death.  Transfer can happen with a few deaths, and usually requires submission of a death certificate.  Again, because the asset had a label, it avoids probate.
3. Beneficiary forms.  Associated with retirement accounts and life insurance, these forms direct the distribution of assets upon the death of the owner.  No probate is required.  Transfers happen very quickly, usually within a few weeks.

While these are appealing because they avoid probate, it is important that the owner make sure the labels they've put on property (as those discussed above) are always up to date.  Why?  If an ex-spouse, former boyfriend/girlfriend, etc. is listed, but a will directs property to another person, the label controls.  Not the will.  When there is a label, the label trumps the will.

Remember, a blog is not legal advice.  It is essential that you consult with an attorney in your state for advice on your specific situation.  Thanks for reading, and I hope this post has given you some good things to investigate.

Frequent Fliers Miles, Loyalty Points, and the Great Beyond

If you are like most people, in your wallet or brief case you likely carry a frequent flier card or some sort of loyalty program.  And given the kind of work I do, a natural question is what happens to those "points" when you die?

 Of course, being an attorney my answer is "it depends".  As recently covered at a recent continuing legal education update it was shared that the distribution of these assets vary, and depend on the terms of the contract created by each company.  But, there is an article available on the web (dated 2011) that covers some of the big ones.  Do you use a beneficiary form?  Does your will control?  What if you die without a will?  If this seems trivial, pause and reflect on the fact that it is estimated that members are estimated to be holding approximately 3.5 trillion unused miles.  That is a lot of miles to pass without a little though and reflection.

Even if you do know what will happen (they pass via will) in your situation, make sure the fact you hold those miles/points/awards is known to your personal representative.  If they don't know about an asset -- does it exist?

Thanks for reading, and I'll be back next week.  Also, keep in mind that a blog post is no substitute for speaking with an attorney about the specifics of your situation.

Image credit:  www.sxc.hu - free image

What is an Ancillary Probate?

When I saw the envelope in my in-box I knew -- damn, the register of deeds rejected our filing.  A thick envelope is never a good thing; it means everything you sent them is coming back, a thin envelope means it was accepted an a confirmation slip awaits.  Just the opposite of college acceptance letters, or at least back in the day when college admission was conveyed via the US Mail and not the internet.

Because the man who had died was listed as one of three people on the deed, with no statement of what interest he owned (join tenant, life estate, etc.) the presumption is tenants-in-common.  As such, his share needs to be transferred via probate, and not the much more simple HT-110 form.  To complicate matters, the decedent was a resident of Illinois, not Wisconsin where the property at issue is located.  And when that happens, an ancillary probate is needed.

Ancillary is an adjective which means to provide necessary support to a primary activity or operation.  Since the decedent lived in Illinois, the Illinois probate is primary (remember, probates are matters of State law).  However, and Illinois proceeding cannot transfer real property owned in Wisconsin.  A probate proceeding here in Wisconsin, in the county where the property is located, will be required to change the deed.

Had the deed stated joint tenants, an ancillary probate would have been avoided.  The moral of this story is -- when you own property in a state where you do not have residency (residency is easily determined by where you vote), be aware that an ancillary probate may pop up unless to take action.

Please note, a blog is not a legal opinion.  Consulting with an attorney in your state about the specifics of your situation is essential.  And thanks for reading.

Removing An Old Will From the Probate File!

Image credit:  www.sxc.hu - free image

Routinely, people ask me what they can do to minimize the burden of probate on loved ones once they are gone.  Common convention always seems to move towards trusts, which I feel are more complexity than most people want or need.  My answer is simple, be organized!  The more organized you are, the easier it will be on your loved ones once your earthly days have come to an end.

And keeping with that mantra, I recently asked a law clerk of mine to research the exact steps involved for a client to remove his old will from the file at Dane County's Probate Court, where it had been placed for safekeeping.  After working with me this past summer, he had a new will that revoked his former one on file. However, upon his death there is a chance that the newer will would not be located in his personal possessions and the old will on file would be found.  Later is the newer one was recovered....well you get the picture, a lot of hassle would occur.

Thanks to Sarah Wood, one of my current law clerks, my client and I now have the exact steps needed for that original will to be removed.  Here are her thoughts:

Have you changed your will but still have an old copy on file at the courthouse? If so, probate court  may rely on your old will and fail to realize that a new will is in place. It is common to change your will throughout your lifetime, so what can you do to reduce confusion? All you need to do is remove your will on file at the probate court. The process for removing an old will in Dane County, Wisconsin, is easy. Just follow these simple steps:
·         Go to  Room 1005 of the Dane County Courthouse, located at 215 S. Hamilton Street in Madison, Wisconsin. The Dane County Probate Court is open from 7:45 – 3:00 Monday through Friday.
·         Bring a form of identification with you to the courthouse. Let them know you are there to have your old will removed from their file.
·         A courthouse employee will then provide the necessary forms for you to fill out and sign.
·         After completion of these steps, your old will will then be removed from the courthouse file.
 Removing old wills from the file at probate court is just another easy step that you can take in reducing confusion and staying organizing when it comes to your estate plan. By following this simple process, you can ensure that your most recent and correct will is followed during probate. 

Thanks for reading, and please remember that a blog is no substitute for an attorney.  Please consult a professional in your state for advice specific to your situation.