Affiliated Attorneys, LLC Blog
Sunday, January 22, 2017
Today, individuals who are seeking relief under Chapter 7 or Chapter 13 of the Bankruptcy Code are required to complete credit counseling with an agency approved by the U.S. Trustee's office. The purpose of pre-bankruptcy credit counseling is to determine if the debtor qualifies for bankruptcy or whether an informal payment plan is a better option.
In any event, credit counseling is necessary even if a payment plan is not feasible. Moreover, counseling must be completed within the 180-day period before the bankruptcy filing. Also, a certification of completion must be filed with the bankruptcy court within 15 days of the filing date. If the required course is not completed the bankruptcy petition will be dismissed.
The fact that participation in credit counseling is mandatory does that mean the debtor must agree with the counselor's recommendations, which are based on an assessment of the debtor's financial situation. In addition to informal payment plan, a credit counselor can also recommend a formal repayment plan under Chapter 13. This plan must be filed along with the other bankruptcy documents. On the other hand, the counselor may find that a Chapter 7 filing is the only option. Ultimately, the courts are inclined to agree with the agency's recommendations.
It is important to note that this is not the only counseling bankruptcy filers must agree to. If the bankruptcy petition is approved, it is also necessary to complete an approved course on consumer debt, before the debts are discharged. The goal of this course is to educate debtors about finances, including matters such as how to develop a budget, manage money, and use credit responsibly.
In the end, the decision to file for bankruptcy is difficult and one that requires serious consideration. While filing for personal bankruptcy can help a distressed debtor make a fresh start or work out a payment plan, bankruptcy can cause long lasting damage to his or her credit worthiness. Regardless, it is best to speak to an experienced bankruptcy attorney who can help explore all the options.
Sunday, January 15, 2017
As many can attest, going through a divorce can be a difficult experience and the process can become contentious. Even after the spouses reach a settlement, conflict may continue to arise, particularly when a parent fails to make the required child support payments. In these cases, it may be necessary to take legal action to Read more . . .
Sunday, January 8, 2017
The most basic estate planning tool is a will which establishes how an individual's property will be distributed and names beneficiaries to receive those assets. Unfortunately, there are circumstances when disputes arise among surviving family members that can lead to a will contest. This is a court proceeding in which the validity of the will is challenged.
In order to have standing to bring a will contest, a party must have a legitimate interest in the estate. Although the law in this regard varies from state to state, the proceeding can be brought by heirs, beneficiaries, and others who stand to inherit. While these disputes are often the result of changes to the distribution plan from a prior will, some common types of will contests are as follows.
Lack of testamentary capacity
The testator, that is the person making the will, must have the mental capacity and be of sound mind at the time the will is executed , modified or revoked. Further, being of sound mind means that the testator knows what property he or she owns and understands the effect of executing the will. Although these are considered to be low standards, claims that the deceased lacked the mental capacity when the will was executed are common.
If the deceased was coerced into executing the will, it may be considered invalid. In order to ensure that the testator is not subjected to undue influence, the will should be prepared by an attorney. Moreover, heirs and beneficiaries should not take part in meetings and discussions between the testator and his or her attorney.
Will improperly executed
There are certain formalities that must be followed in order for a will to be considered validly executed. While some states require a notarized signature, others insist on a certain number of witnesses being present when the will is executed. If these formalities are not strictly followed, the will may be found to be improperly executed.
A will can also be considered invalid if a person is intentionally deceived when preparing and executing the document.
If a will is successfully contested, it can be declared invalid by the court. This means that the assets will be distributed either according to the terms of a prior will or if no such will exists, the state's intestacy rules. Ultimately, engaging the services of an experienced estate planning an attorney can minimize the risk of a will contest.
Monday, December 26, 2016
If an individual filing for Chapter 7 bankruptcy owns an automobile, that vehicle may become the property of the bankruptcy estate used for the purpose of making creditors whole. If the car has a lean on it from the lending institution, the loan must be reaffirmed or redeemed, or the vehicle must be surrendered. If the loan is reaffirmed, the individual who took out the loan must sign a contract agreeing to continue making payments to the lender. The car loan will be unaffected by the bankruptcy, and the debt will not be discharged. An individual in bankruptcy may use the opportunity to renegotiate the terms of the loan for his or her benefit, though the new agreement must be approved by the bankruptcy court.
When an individual chooses to satisfy a car loan through redemption, that person must work with the lender to determine the current value of the automobile. The individual must pay the lender that amount, thereby settling the debt for less than its full value. If a person is not able to meet either of these sets of conditions, the car must be surrendered to the bankruptcy estate and the debt associated with it will be discharged. The creditor cannot take the car until after the bankruptcy is completed unless it files a motion with the court to repossess the vehicle earlier.
If there is no loan on the car, a bankruptcy petitioner still has options available. Both federal and state rules allow individuals to exempt personal possessions and motor vehicles up to a maximum value from the bankruptcy estate. If a bankruptcy petitioner is able to declare the entire value off the car as exempt or if the non-exempt value is negligible, the bankruptcy trustee will allow the petitioner to keep the car. If an automobile in bankruptcy is worth significantly more than the amount allowed by the exemption, the petitioner may pay the trustee the balance between the value of the car and the exempt portion. Althernatively, the petitioner may surrender the automobile to the bankruptcy trustee who will sell it and return the exempt portion to the petitioner. In any case, the petitioner has the right to decide what should happen to his or her car.
Monday, December 12, 2016
There are many benefits to a revocable living trust that are not available in a will. An individual can choose to have one or both, and an attorney can best clarify the advantages of each. If the person engaged in planning his or her estate wants to retain the ability to change or rescind the document, the living trust is probably the best option since it is revocable.
The document is called a “living” trust because it is applicable throughout one's lifetime. Another individual or entity, such as a bank, can be appointed as trustee to manage and protect assets and to distribute assets to beneficiaries upon one's death.
A living trust will also protect assets if and when a person becomes sick or disabled. The designated trustee will hold “legal title” of the assets in the trust. If an individual wants to maintain full control over his or her property, he or she may also choose to remain the holder of the title as trustee.
It should be noted, however, that the revocable power that comes with the trust may involve taxation. Usually, a trust is considered a part of the decedent’s estate, and therefore, an estate tax applies. One cannot escape liability via a trust because the assets are still subject to debts upon death. On the upside, the trust may not need to go through probate, which could save months of time and attorneys' fees.
The revocable living trust is contrary to the irrevocable living trust, in that the latter cannot be rescinded or altered during one's lifetime. It does, however, avoid the tax consequences of a revocable trust. An attorney can explain the intricacies of other protections an irrevocable living trust provides.
Anyone who wants to keep certain information or assets private, will likely want to create a living trust. A trust is not normally made public, whereas a will is put into the public record once it passes through probate. Consulting with an attorney can help determine the best methods to ensure protection of assets in individual cases.
Monday, December 5, 2016
When a child is adopted from a foreign country, that child must go through the immigration process through the United States Customs and Immigration Service like any other person. The child must be eligible for adoption under the Immigration and Naturalization Act. If a child is adopted from another country and is deemed ineligible, that child will not be permitted to immigrate to the United States. A child under the age of 16 who has resided with his or her adoptive parents for two years may apply for entry under an I-130 petition. This is rarely utilized because of the requirement that the adoptive parent live abroad for two years. Most adoptions are done through one of two processes depending on the country of origin of the child being adopted.
If the child being adopted is from a country that is a party to the Hague Convention, the prospective parents must seek adoption through an approved service provider. They will have to fill out form I-800A to determine whether they are eligible to adopt a child from a foreign country. They will be fingerprinted and undergo a background check and a home study. The child’s country of origin will then examine your credentials and match you with a child. This process can take months or years. At this point, the prospective parents will meet with the child and decide whether or not to continue the adoption process. The prospective parents must then fill out form I-800 to confirm that the child is eligible to immigrate to the United States, and form DS-260 to request that the child be permitted to immigrate. If everything is in order, the US Consulate will provide a letter confirming the child will be permitted to immigrate to the US. At that time, the adoption process must be completed in the child’s country of origin and prospective parents will receive a copy of the child’s birth certificate, the Hague Adoption Certificate, and an IH-3 visa. If the adoption process will be completed in the United States, the child will be issued an IH-4 visa until the time the adoption process is completed and the parents must also complete form N-600.
In countries which were not parties to the Hague Convention, the process is simpler. The child must be an orphan, or the surviving parent(s) must be unable to care for the child and acknowledge their abandonment of their parental rights in writing. The prospective parents must file form I-600 and apply for an IR-3 or IR-4 visa.
Monday, November 28, 2016
Bankruptcy is designed to protect individuals, small businesses, and corporations from being overwhelmed by debt. The process involves reorganization and restructuring of debt so that a significant portion of it is discharged ("forgiven"), and the remainder is repaid at a lower rate. Bankruptcy is designed to enable an individual or company to continue to function and prevent ongoing harassment from creditors. The two basic types of bankruptcy are liquidation and reorganization.
Discharge in Bankruptcy
There are several types of discharge in bankruptcy, but not all debts are able to be discharged. A secured creditor may enforce a lien to recover property secured by a particular loan, such as an automobile or a house. If the debtor wants to retain such property, payments must be paid to these creditors. Also, while many debts can be discharged, and the debtor who declares bankruptcy can be protected from harassment by most creditors, there are other debts that are deemed to be be non-dischargeable, including, taxes, penalties, fines, college loans, and child support and alimony payments.
Types of Bankruptcy
The various types of bankruptcy are named for the chapters of the U.S. Bankruptcy Code in which they are defined. . The two most common forms of bankruptcy filed in the U.S. are Chapter 7 and Chapter 13, and bankruptcies under these chapters are typically filed by individuals or couples. On the other hand, a Chapter 11 bankruptcy is usually filed by businesses.
Chapter 7 bankruptcy is also referred to as a liquidation because under this process the bankruptcy trustee can takes charge of, and sells, some of debtor's property to pay back a portion of the accumulated debt. Chapter 7 bankruptcy is designed to relieve the debtor of unsecured debts, such as credit card and medical bills. In order to qualify for Chapter 7 bankruptcy, however, the debtor must have little or no disposable income. This means that if you earn too much money, you cannot apply for this type of protection. Chapter 7 bankruptcy, therefore, is usually helpful to low income debtors with few assets, and typically discharges debts within 3 to 5 months.
Chapter 13 Bankruptcy
Chapter 13 bankruptcy, unlike Chapter 7, is a form of reorganization of debt. This filing is designed to assist debtors with regular income who can repay at least some portion of their debts through a structured repayment plan. While many debtors, because of their elevated income or asset level, find it necessary to file Chapter 13, there are also other advantages such as the ability to catch up on delinquent mortgage payments. Debtors who file for Chapter 13 are permitted to keep all of their assets as long as they make structured payments to pay off their non-dischargeable debts. Chapter 13 bankruptcy plans are usually completed within a period of 3 to 5 years.
Although the vast majority of debtors seeking individual relief from debt file for Chapter 7 or Chapter 13, there are a number of other types of filings used for various purposes. The most common of these is Chapter 11 bankruptcy.
Chapter 11 Bankruptcy isanother type of bankruptcy reorganization available to individuals, corporations and partnerships. Where Chapter 13 bankruptcy limits the amount of debt that can discharged, chapter 11 does not. Therefore, Chapter 13 is typically used by businesses undergoing financial struggles and looking to reorganize. Because it is fairly cumbersome for individuals -- being both expensive and time-consuming -- Chapter 11 is generally only used by individuals with debt levels too high for Chapter 13 filing, or by individuals with extraordinarily high assets or complicated finances.
There are a number of other chapters of bankruptcy, such as those applying to family farms or fisheries, or designed to relieve municipalities or school districts of overwhelming debt, but these do not concern the typical individual. If you find yourself burdened with debt that cannot be repaid, you should consult a bankruptcy attorney promptly to discuss your best options.
Monday, November 14, 2016
In states that have “elective share statutes,” a surviving spouse is legally entitled to a certain percentage of the deceased's estate, even if that spouse has attempted to disinherit or to provide a lesser bequest, or gift, under the will. In “separate property” states, an elective share statute is likely to be in effect. If the estate in question is valued at $50,000 or less, the elective share is likely to be the actual amount of the net estate.
“Testamentary substitutes” are removed from particular assets that would otherwise pass to the surviving spouse. Assets passing by will or through intestacy could cause a reduction in the elective share amount as well. Totten trusts, such as Payable-On-Death Bank Accounts (PODs), Retirement or joint bank accounts, gifts causa mortis ("gifts made by the decedent in contemplation of death,”) U.S. savings bonds, jointly held property, and gifts or transfers that were made approximately one year prior to death, are some examples of testamentary substitutes.
If a gift was made about one year prior to death, yet involves medical or educational expenses, then the gift may not qualify as a true testamentary substitute. With regard to PODs, the spouse, offspring, or grandchildren will be named as beneficiaries. The funds of a POD are only distributed upon the decedent’s death. Testamentary Trusts are listed in the will until the designated property passes to the trust upon the testator’s death.
Generally, a gift causa mortis is only active upon the decedent’s expected death and is typically revocable. Moreover, certain elements must exist to create a valid gift causa mortis. These include an intent to create “an immediate transfer of ownership,” valid delivery, acceptance of the gift by the donee, and the donor’s “anticipation of imminent death.” There are also certain circumstances by which gifts causa mortis are not valid. For example, if the donee passes away before the donor, it is unlikely that a property interest was transferred. Gifts causa mortis are also taxed as if the testator had listed the gifts in his or her will.
In such cases, testamentary substitutes are generally put back into the net estate total to determine the elective share amount that the surviving spouse will collect. The aforementioned may vary if property is held jointly, as joint tenants or otherwise, because the spouse may have a right of survivorship in the property. Estate planning attorneys are aware of all the ins and outs of testamentary substitutes and how they may affect the distribution of your assets. It is useful, if not essential, to consult with a knowledgeable attorney when making arrangements regarding testamentary substitutes.
Monday, November 7, 2016
Public policy in the United States is to keep families together, and the rules of immigration are designed to encourage this to a great extent. Generally, the spouse of a person who is in the United States legally may stay in the country for as long as the spouse is permitted to stay. The spouse of a US citizen may apply for a green card upon marriage. Prior to marriage, a citizen’s fiancé may apply for a K-1 visa which is valid for 90 days before the wedding. A K-1 applicant’s children may also stay in the country under the K-2 designation.
Just about every type of non-immigrant visa has a counterpart for the individual’s spouse. An F-2 visa is designated for the spouse and children of an F-1 student visa holder. An H-4 visa is for the family of a person in the United States on an H-1B, H-2B, or H-3 foreign worker visa. Religious workers who enter the country on an R-1 visa can obtain permission for their dependent spouses and children to enter through the R-2 visa. The commonality among all these is that these visas are designed for non-immigrants who expect to stay in the United States for an extended period of time. These spousal visas do not exist for those who are traveling for a short-term stay. Both spouses must apply separately for B-2 tourist visas.
Simply because a spouse or dependent child is permitted into the country prior does not mean that the spouse or child can participate in every activity the spouse partakes of. Many temporary non-immigrant visas, for example, permit an individual to work. An O-1 visa holder is allowed into the country specifically to perform a specialized task for which he or she has extraordinary ability. The O-1 visa holder’s spouse may enter the country under an O-3 visa, but may not seek employment. This places a financial burden on the O-1 visa holder and makes it impractical for his or her spouse and children to come to the United States. Depending on the specific type of visa, other restrictions may exist on an applicant’s ability to travel or engage in a course of study. Only an experienced immigration attorney can confirm the restrictions on each specific visa.
Monday, October 24, 2016
So, you have a will, but is it valid? A will can be contested for a multitude of reasons after it is presented to a probate court. It is in your best interest to have an attorney draft the will to prevent any ambiguity in the provisions of the document that others could dispute later.
A will may be targeted on grounds of fraud, mental incapacity, validity, duress, or undue influence. These objections can draw out the probate process and make it very time consuming and expensive. More importantly, an attorney can help ensure that your property is put into the right hands, rather than distributed to unfamiliar people or organizations that you did not intend to provide for.
At the time you executed the will, you must have been mentally competent, or of “sound mind.” A court will inquire as to whether you had full awareness of what you were doing. There will also be an inquiry into your understanding and knowledge of the assets in your name. If, at the moment you executed the will, you were pressured or influenced by another individual to sign the document, it may be invalidated.
If the document was signed under duress or undue influence, the provisions are likely to be against your intentions or requests. Moreover, if you are trying to nullify a will on your own behalf, you are likely to need an attorney because it is very difficult and complicated to demonstrate the existence of duress, fraud, or undue influence. If drafting a new will, counsel can ensure that your document abides by all of the validity requirements, so the will’s provisions can successfully carry out your intentions after your death.
For example, the will creator or “testator,” is usually required to sign the document before several witnesses who are over the age of eighteen, during a certain period of time. A will or a certain bequest to a person could be deemed void if the beneficiary was also a witness. In your state, you may be able to execute a “self-proving affidavit,” which may do away with some of the requirements in order to establish a valid will. The testator should also designate a person to execute the document. Consult your attorney to ensure that your will comports with your state’s particular laws and is sustainable against any future contests.
Monday, October 17, 2016
Walt Disney: Before Walt Disney became a household name, he started a company called Laugh-o-Gram with a used camera in Kansas City. His plan was to make advertisements and cartoons. When money got tight and his overhead costs were too expensive to maintain, Disney declared bankruptcy and moved to Hollywood. Five years later, he created Mickey Mouse.
Donald Trump: Donald Trump has never filed for personal bankruptcy, but the casino and hotel empire on which he has built his fortune has declared bankruptcy four times. The Trump Taj Mahal declared bankruptcy in 1991, and it worked so well that Trump Castle Associates followed suit in 1992. In 2004 Trump Hotel and Casino Resorts filed bankruptcy, and, most recently, Trump Entertainment resorts filed bankruptcy in 2009 after it missed a $53.1 million bond payment. He severed his ties with the remaining casinos in Atlantic City, including two that declared bankruptcy in 2014. Trump has no regrets for these bankruptcies saying, "I have used the laws of this country ... the [bankruptcy] chapter laws, to do a great job for my company, for myself, for my employees, for my family,"
Larry King: Larry King filed for bankruptcy in 1978 with $352,000.00 in debt. He had been struggling to find work as a journalist for years. Luckily, that same year, CNN offered him a job as a late night talk radio host in Washington DC. Later, this show became Larry King Live, which ran for 25 years. He is thought to be worth $150 million.
Cyndi Lauper: In 1981, Cyndi Lauper was working in a Japanese restaurant and in retail trying to make ends meet while waiting for her music career to take off. It took a little longer than she could manage, so she declared bankruptcy, two years before she released her breakout album, “She’s so Unusual.” Her net worth is now approximately $30,000,000.00.
Milton Hershey: Milton Hershey was always better at making candy than he was at running a business. His first two attempts at a candy shop went bankrupt, one in Philadelphia, and one in New York City. He sold his third company for a million dollars in 1900, and went on to create the recipe for milk chocolate for which his fourth company was so well known.
Henry Ford: Henry Ford’s first attempt at car manufacturing was called the Detroit Automobile Company. In two years, the company only produced twenty cars and went bankrupt. The company changed its name to the Henry Ford Company before its founder left to create the Ford Motor Company. The reorganization helped the Henry Ford Company tremendously which still exists and operates as Cadillac Automobile Company.
Serving Southeastern Wisconsin, with offices in Milwaukee and West Bend, Affliated Attorneys, LLC represent clients throughout Milwaukee County, Washington County, Waukesha County, Dodge County, Ozaukee County, Racine County, Sheboygan County, Jefferson County, Fond du Lac County and Walworth County.