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Monday, February 12, 2018

How to Get A Provisional Unlawful Presence Waiver


Under current law, many immigrants are required to travel abroad and apply for an immigrant visa from their home country before they can return and become lawful permanent residents of the U.S.  Immigrants in the United States illegally, however, may be barred from returning to the United States for either three years or ten years under Section 212(a)(9)(B) of the Immigration and Nationality Act.  

To avoid this bar, these foreign nationals must obtain a waiver of their unlawful presence when applying for an immigrant visa.  Seeking a waiver can lead to a Catch-22, however—leaving the U.
Read more . . .


Monday, February 5, 2018

What are Letters Testamentary?

An individual who has been named as a personal representative or executor in a will has a number of important duties. These include gathering the deceased person's property and transferring it to the beneficiaries through a court-supervised process known as probate. In order to initiate this proceeding, the executor must first obtain what are referred to as letters testamentary. This document gives the executor the legal authority to administer the deceased person's estate.

While the process varies from state to state, the executor must petition the probate court in the county in which the decedent lived. This typically requires submitting the death certificate and completing a short application. The application includes a sworn statement that the person has been named as the executor in the will, as well as an estimate of the estate's property and debts.

The probate court will then hold a hearing to verify that the individual meets the qualifications to act as executor. Generally he or she must be a mentally competent adult and not be a convicted felon. If approved, the court will issue letters testamentary and officially open probate.

In short, the letters allow the executor to collect the assets of the deceased which may be held by  another person or an institution such as a bank. Since banks and other institutions may want to keep the document on file, it is necessary to obtain multiple certified copies. The executor can also carry out his or her other duties such as inventorying and appraising assets, paying debts, and transferring property to beneficiaries, according to the terms of the will.

Letters of Administration

In the event a person dies without a valid will in place, an heir of the decedent, typically a legal relative, needs to petition the probate court for letters of administration. In this situation, the court will hold a hearing to appoint this individual to act as the estate administrator, issue the letters and open probate. The administrator then manages and distributes the assets according to the state's intestacy laws which generally give priority to spouses, children and parents.

 


Monday, January 29, 2018

Things to Consider When Picking an Executor

The role of an executor is to effectuate a deceased person’s wishes as declared in a will after he or she has passed on. The executor’s responsibilities include the distribution of assets according to the will, the maintenance of assets until the will is settled, and the paying of estate bills and debts. An old joke says that you should choose an enemy to perform the task because it is such a thankless job, even though the executor may take a percentage of the estate’s assets as a fee. The following issues should be considered when choosing an executor for one's estate.

Competency: The executor of an estate will be going through financial and legal documents and transferring documents from the testator to the beneficiaries. If there are legal proceedings, the executor must make all necessary court appearances. There is no requirement that a testator have any financial or legal training, but familiarity with these areas does avoid the intimidation felt by lay people, and potentially saves money on professional fees.

Trustworthiness: The signature of an executor is equivalent to that of the testator of an estate. The executor has full control over all of an estate’s assets. He or she will be required to go through all of the papers of the deceased to confirm what assets are available to be distributed. The temptation to transfer assets into the executor's own name always exists, particularly when there is a large estate. It is important to choose a person with integrity who will resist this temptation. It makes sense to utilize an individual who is an heir to fill the role to alleviate this concern.

Availability: The work of collecting rents, maintaining property, and paying debts can take more than a few hours a week. Selecting an executor with significant obligations to work or family may cause problems if he or she does not have the time available to devote to the task. If an executor must travel great distances to address issues that arise, there will be more of a time commitment necessary, not to mention greater expenses for the estate.

Family dynamics: Selection of the wrong person to act as executor can create resentment and hostility among an estate’s heirs. A testator should be aware of how family members interact with one another and avoid picking someone who may provoke conflict. Even the perception of impropriety can lead to a lawsuit, which will serve to take money out of the estate’s coffers and delay the legitimate distribution of the estate. 


Monday, January 15, 2018

How to Leave Gifts to Step-Children

Today, blended families have become increasingly common, and many individuals have step-children, that is, children of a spouse or partner. In situations where step-children have not been legally adopted, however, they do not have a legal right to an inheritance from a step-parent. For those who wish to leave step-children part of their estate , it is necessary to include them in an estate plan.

The easiest way to leave gifts to step-children is to name them in a will. As with any other gift, they can be given a percentage of the estate, or specific gifts. If there are other children involved, it is important to avoid confusion by naming each child and step-child by using their individual names, rather than terms such as "descendants," "heirs," or "children."

There are also a number of estate planning tools that can be utilized to include step-children in an inheritance. If the objective is to avoid probate, for example, a revocable living trust can be established in which a step-child is named as a beneficiary. Moreover, it may be necessary to provide for a disabled step-child who is eligible for public benefits by establishing a special needs trust. Lastly, a step-child can also be named as a beneficiary in a life insurance policy or a pay-on-death financial account.

While there is no legal obligation to leave step-children an inheritance, it may be the best choice for those who have a close relationship, or played a significant role, in raising them. However, this will reduce the amount of assets available to other children and beneficiaries. Because blended family relationships are complex and subject to emotional challenges, it is important to explain these decisions with all family members.

By engaging in an open and honest dialogue, you can minimize the potential for strife and the possibility of a will contest. In particular, it is important to clarify why you gave each recipient a gift, the selection of your executor, and your thoughts about the family.  Lastly, you are well advised to engage the services of an estate planning attorney who can help ensure your wishes regarding step-children are carried out.


Sunday, January 7, 2018

Should Employers Enroll in E-Verify? Pros and Cons

The U.S. Citizenship and Immigration Services, in partnership with the Social Security Administration (SSA), offers E-Verify to help employers instantly determine an employee's eligibility to work.  Initial confirmations and "Tentative Non Confirmations" are available in as little as three to five seconds.

The voluntary Internet-based program works by comparing the information from an employee’s Form I-9, Employment Eligibility Verification, with Department of Homeland Security and Social Security Administration records.  Instead of simply retaining I-9s on file in their own offices, employers who enroll in E-Verify must enter the I-9s of all new hires into the program's database.

There are both advantages and disadvantages to using E-Verify.  Employers must weigh each and its relevance to their circumstances.

Five Benefits of Signing Up for E-Verify

 • While E-Verify is generally voluntary, some states require employers to use E-Verify, and it is mandatory for some federal government contracts.

 • E-Verify could become mandatory nationwide.  Adopting it earlier affords employers more time to become familiar with it and adapt.

 • E-Verify helps companies avoid hiring and training a person who turns out to be ineligible to work.  It can eliminate "No Match" letters from the SSA notifying an employer that an employee's reported social security number does not match government records.

• If an employer hires foreign nationals who recently received a degree in science, technology, engineering, or mathematics, enrolling in E-Verify may make those workers eligible to work an additional 17 months without the employer having to file H-1B petitions on their behalf

•Although using E-Verify does not provide a "safe harbor" from prosecution, it creates a "rebuttable presumption" that the employer has not violated section 274A(a)(1)(A) of the Immigration and Nationality Act ("Unlawful Employment of Aliens").

Five Drawbacks of Signing Up for E-Verify

 • E-Verify is not entirely free.  Employers must allot time and resources to training and supervising staff to use the system and deal with the results of queries.  

 • E-Verify makes mistakes, issuing Tentative or Final Non-Confirmations for workers who are authorized to work, or stating “Employment Authorized” for workers who are not.

 • Tentative Non-Confirmations open employers up to new legal risks.  For example, employees have sued employers for discrimination for not providing proper notice and instructions for contesting a Tentative Non-Confirmation.

 • E-Verify can lead to liability for privacy and discrimination violations.  Federal and state laws require the safeguarding of I-9 information.  Employers must make sure that their staff does not intentionally or accidentally misuse E-Verify data.

 • Because the government can use E-Verify to mine data, it may find employers' hiring mistakes that otherwise would not have been discovered.  For example, employers enrolled in E-Verify must complete and submit I-9 forms by the third business day after a new hire's first day of work.  Consistently missing this deadline could trigger an I-9 inspection and fine.  Employers who are not submitting I-9s to E-Verify might never be caught in a slight delay in completing them.

 If you have encountered any of these issues in your past or current use of the E-Verify system, you would be best served by discussing the problems with an immigration law attorney as soon as possible.


Monday, December 11, 2017

What would happen if another child is born after establishing an estate plan?

This question presents a fairly common issue posed to estate planning attorneys. The solution is also pretty easy to address in your will, trust and other estate planning documents, including any guardianship appointment for your minor children.

First, its important to note that you should not delay establishing an estate plan pending the birth of a new child.  In fact, if your planning is done right you most likely will not need to modify your estate plan after a new child is born.  The problem with waiting is that you cannot know what tomorrow will bring and you could die, or become incapacitated and not having any type of plan is a bad idea. 

In terms of how an estate plan can provide for “after-born” children, there are a few drafting techniques that can address this issue.  For example, in your will, it would refer to your current children typically by name and their date of birth. Then, your will would provide that any reference to the term "your children" would include any children born to you, or adopted by you, after the date you sign your will.

In addition, in the section or article of your will that provides how your estate and assets will be divided, it could simply provide that your estate and assets will be divided into separate and equal shares, one each for "your children." That would mean that whatever children you have at the time of your death would receive a share and thus the will would work as you intend, even if you did not amend it after having a new child. 

On a side note, you should make certain that your plan does not give the children their share of your estate outright while they are still young.  Rather, your will or living trust should provide that the assets and money are held in a trust structure until they are reach a certain age or achieve certain milestones such as college graduation or marriage. Any good estate planning attorney should be able to advise you about this and help walk you through the various options you have available to you.


Monday, November 13, 2017

Stepparent Adoptions

Stepparent adoption is the most common form of adoption in the United States. Once the adoption is finalized, the stepparent assumes full financial and legal responsibility for his or her spouse’s child and the non-custodial parent’s rights and responsibilities are terminated.  

Stepparent adoptions are handled according to state law, which can vary across jurisdictions. For example, some states do not require a home study in cases of stepparent adoption. Most states require that the biological parent and stepparent be married for a specified length of time before an adoption may be finalized. Fortunately for blended families, most states make the adoption process easier for stepchildren to be adopted by their stepparents.

Stepparent adoptions require the consent of both of the child’s birth parents, but the process is handled differently in various states. In some states, the non-custodial parent must file papers with the court or appear before a judge, while a simple written statement is sufficient in other jurisdictions. Some states require the non-custodial parent to seek counseling or speak to a lawyer in order to give valid consent.

The consent requirement is not absolute and in fact, consent may not be required in certain situations. In some states, a stepparent adoption may be finalized even if the child’s biological, non-custodial parent contests the adoption, such as when the non-custodial parent has not contacted the child for a specified period of time. If you are having difficulty obtaining consent, you should speak with an attorney. If you cannot afford an attorney, you may be eligible for free legal aid or the court may appoint a guardian ad litem to represent your child.
 


Monday, October 16, 2017

Master Calendar Hearings

The first stage in the removal (deportation) of a foreign national is a Notice to Appear (NTA) at a Master Calendar Hearing.  The purpose of the hearing is not to reach a final decision on removal, but to obtain basic information about the case and create a schedule for it to proceed.  It also is an opportunity for the court to outline all of the legal rights available to the foreign national, including the right to answer charges, present evidence, examine witnesses and, if the respondent lacks counsel, make use of any free or low-cost legal service providers who may be available.

The Notice to Appear contains the date, time and location of the hearing, usually at least ten days later.  A fo

reign national (the "respondent") who receives a notice must attend in person, with or without an attorney.  Failure to attend, or even showing up late, can result in denial of an application and deportation "in absentia."  The respondent should bring the Notice to Appear and any official identification documents.  Family members can attend.

The Notice to Appear also contains allegations about the respondent's illegal status in the United States.  The respondent, with the help of an attorney if possible, should examine these allegations carefully and be prepared to deny them and correct any inaccuracies.

The Master Calendar Hearing itself is brief, though it may take hours for a case to be called.  When the respondent's name and Alien Registration Number are announced, the respondent and counsel, if any, appear before an Immigration Court Judge.  The court will generally provide an interpreter, if needed.

The judge may ask for basic information, such as name, address, and the languages the respondent speaks.  The judge then reviews the charges.  The respondent can deny some or all of the government's allegations and point out any factual errors regarding names, dates, places, or other details.  The respondent can designate—or refuse to designate— a "country of removal," i.e. where to be sent if deported.

The respondent can also state the basis of a claim for relief from removal from the United States.  These may include:

  • Asylum based on persecution in the immigrant's home country. 
  • Marriage to a US citizen.
  • Cancellation of removal for qualifying lawful permanent and non-permanent residents.
  • Adjustment of status from non-immigrant to a lawful permanent resident.
  • Voluntary departure.

At the conclusion of the hearing, the judge gives the respondent a deadline for submitting further applications or documents.  The judge may schedule another Master Calendar hearing for the case, or set a date for an individual hearing on the merits.  The respondent may ask for more time to retain an attorney, submit documents, or prepare for the next hearing.

If you have been notified that you will be subject to a Master Calendar hearing and are at risk of deportation it is imperative to hire an experienced immigration law attorney to protect your rights.


Monday, September 18, 2017

How to Calculate Estate Tax

In order to predict how much your estate will have to pay in taxes, one must first determine the value of the estate. To determine this, many assets might have to be appraised at fair market value. The estate includes all assets including real estate, cash, securities, stocks, bonds, business interests, loans receivable, furnishings, jewelry, and other valuables.

Once your net worth is established, you can subtract liabilities like mortgages, credit cards, other legitimate debts, funeral expenses, medical bills, and the administrative cost to settle your estate including attorney, accounting and appraisal fees, storage and shipping fees, insurances, and court fees. The administrative expenses will likely total roughly 5% of the total estate. Any assets that is bequeathed to charity through a trust escapes taxation, and the value of those assets must be subtracted from the total. Any assets transferred to a surviving spouse are not subject to taxation as long as your spouse is a US citizen.

If the net worth of an estate is less than the Federal and state exemptions, no taxes must be paid. However, the value of assets over the exemptions will be taxed. The amount over the exemptions is referred to as the taxable estate. A testator’s assets are taxed by the state in which the will is probated. Taxes paid by the estate to the state may be deducted for Federal tax purposes. The Federal exemption was $5.43 million in 2015 and is slated to increase in 2016. The top Federal estate tax rate in 2015 was 40%.

If an estate earns money while it is being administered and distributed, for example, if real estate is rented or businesses continue to operate, it will be necessary for the estate to complete a tax return and pay taxes on the income it receives. The net income of the estate can be added to the taxable portion of the estate if it is over the federal or state exemption. It is important to be aware that the laws surrounding estate taxes change frequently and require seasoned professionals to navigate, and to notify you if changes in the laws will affect your estate plan. 


Monday, July 24, 2017

Why New Parents Need an Estate Plan

Becoming a new parent is a life changing experience, and caring for a child is an awesome responsibility as well as a joy. This is also the time to think about your child's future by asking an important question: who will care for your child if you become disabled or die? The best way to put your mind at ease is by having an estate plan.

The most basic estate planning tool is a will, which enables a person to determine how his or her assets will be distributed after death. Without this important estate planning tool, the state's intestacy laws will govern how these assets will be distributed. In addition, decisions about who will care for any minor children will be made by the court. For this reason, it is crucial for new parents to have a will as this is the only way to name guardians for minor children.

In this regard, selecting guardians involves a number of important considerations. Obviously, it is important to name individuals who are emotionally and financially capable of raising a child. At the same time, a will can also establish a trust that provides funds to be used to provide for the child's needs. Ultimately, guardians should share the same moral and spiritual values, and childrearing philosophy of the parents.

In addition to naming guardians in a will, it is also critical to plan for the possibility of incapacity by creating powers of attorney and advance medical directives. A durable power of attorney allows a new parent to name a spouse, or other trusted relative or friend, to handle personal and financial affairs. Further, a power of attorney for healthcare, or healthcare proxy, designates a trusted person to make medical decisions in accordance with the parent's preferences.

Finally, new parents should also obtain adequate life insurance to protect the family. The proceeds from an insurance policy can replace lost income, pay household and living expenses, as well as any debts that may have been owed by the deceased parent. It is also important to ensure that beneficiary designations on any retirement accounts are up to date so that these assets can be transferred expediently.

In the end, having a child is a time of joy, but also one that requires careful planning. The best way to protect your family is by consulting with an experienced estate planning attorney who can help you navigate the process.

 


Monday, July 17, 2017

What is a Debt Management Plan?

If you are having trouble keeping up with your debts, an alternative to filing for bankruptcy is a debt management plan. In this arrangement, you make payments to a credit counseling agency which then pays creditors on your behalf according to a payment plan. Only unsecured loans such as credit card debt and personal loans can be included in a debt management plan while secured debt such as mortgage loans, car loans and student loans are not eligible.

The process starts by meeting with a credit counselor, who thoroughly assesses your financial situation. In addition to debt management, other options will be presented to you, including debt settlement, and filing for personal bankruptcy. If a debt management plan is arranged, the amount you owe will not be reduced, but rather a payment plan for a period of three to five years will be set up.

The counselor then notifies each creditor of the plan, and makes the agency the payer on your account. Depending on the circumstances the counselor can negotiate with the creditor to waive certain fees, lower interest rates and monthly payments. Each month, you pay the agency electronically, and then the agency pays your creditors.

It is important to note that creditors will most likely require accounts to be closed. However, before agreeing to the plan, you can request certain cards to be kept open for emergencies or business purposes. In addition, you will not be able to take on new credit obligations for the duration of the plan.

Lastly, if you fail to abide by the terms of your plan, creditors can begin assessing fees, raising interest rates, or begin collection activities.

In the end, debt management plans can help you get control of your finances. The benefits include making a single, lower monthly payment, stopping harassing debt collector calls, and paying down the debt over time. Ultimately, an attorney with experience in debt management and bankruptcy can help you explore your options.

 


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