Affiliated Attorneys, LLC Blog
Monday, October 10, 2016
Since 1995, people hoping to move to the United States could opt to enter a lottery to receive an immigrant visa through the Diversity Visa program. Every year, 55,000 people are selected to receive immigrant visas by lottery. The list of countries whose citizens are eligible for the diversity visa lottery changes from year to year based on trends from the previous five years. The point of the lottery is to diversify the immigrant population in the United States by selecting applicants from countries with low immigration rates. Applicants from no single country may receive more than 7% of the visas distributed.
In order to qualify for the lottery, an individual must be a natural citizen of the country from which he or she is applying. The individual must also have the equivalent of a high school education and the equivalent of two years work experience in the last five years. Not every job qualifies. The Department of State is looking for individuals working jobs that require some sort of training or specialized knowledge. Engineers, doctors, and lawyers, teachers, electricians, plumbers, and carpenters are likely to qualify while taxi drivers, door men, janitors, and fast food workers are not.
The application itself must be completed electronically through the Department of State. There are no application fees. No paper entries or late entries will be considered. Applications are usually due every year in October. Only one submission can be made per person each year. If an individual is married, both spouses are permitted to submit entries. Once an individual qualifies and submits an application, the winners of the lottery are random and there is no way to increase the odds of being selected.
If an individual is selected, that person must undergo an interview to confirm his or her eligibility. This process may occur in the United States if the applicant is present, or at a US consulate or embassy. The applicant should bring proof that he or she meets all eligibility requirements and records relating to birth, marriage, any prior deportations, criminal records, and records of military service where applicable. If an applicant’s family situation has changed since the application, for example, if the applicant has gotten married or had a child, this must also be discussed in the interview. If the interview does not uncover any additional problems or concerns, the applicant will receive an immigrant visa.
Monday, September 26, 2016
Testamentary capacity refers to a person’s ability to understand and execute a will. As a general rule, most people who are over the age of eighteen are thought to be competent to make and sign the will. They must be able to understand that they are signing the will, they must understand the nature of the property being affected by the will, and they must remember and understand who is affected by the will. These are simple burdens to meet. However, there are a number of reasons a person might challenge a will based on testamentary capacity.
If the testator of a will suffers from paranoid delusions, he or she may make changes to a testamentary document based on beliefs that have no basis in reality. If a disinherited heir can show that a testator suffered from such insane delusions when the changes were made, he or she can have the will invalidated. Similarly a person suffering from dementia or Alzheimer’s disease may be declared unfit to make a will. If a person suffers from a mental or physical disability that prevents them from understanding from understanding that a will is an instrument that is meant to direct how assets are to be distributed in the event of his or her death, that person is not capable of executing a valid will.
It is not entirely uncommon that disinherited heirs complain that a caretaker or a new acquaintance brainwashed the testator into changing his or her will. This is not an accusation of incapacity to make the will, but rather a claim of undue influence. If the third party suggested making the changes, if the third party threatened to withhold care if the will was not changed, or if the third party did anything at all to produce a will that would not be the testator’s intent absent that influence, the will may be set aside for undue influence. Regardless of the reason for the challenge, these determinations will only be made after the testator’s death if the will is presented to a court and challenged. For this reason, it is especially important for the testator to be as thorough as possible in making an estate plan and making sure that any changes are made with the assistance of an experienced estate planning attorney.
Monday, September 12, 2016
Immediately upon the filing of a Bankruptcy petition, a petitioner is granted the protection of an automatic stay. This means that creditors must cease all collection activity, including repossession, garnishment, law suits, phone calls, letters, or any other attempts to collect on the debt. If they fail to do so, they are in violation of the stay.
If a creditor attempts to collect a debt after the filing of a Bankruptcy petition, the Petitioner should let the creditor know that a claim has been filed. It may have been an honest error and the creditor may stop attempts to collect and correct any actions taken after being told that a bankruptcy was filed.
Read more . . .
Monday, September 5, 2016
A durable power of attorney is an important part of an estate plan. It provides that, in the event of disability or incapacitation, a preselected agent can be granted power over the affairs of the individual signing the document. This power can be limited to specific decisions, like the decision to continue life sustaining treatment, or it can be much broader in scope to allow the agent power over the individual’s financial dealings.
Estate planning is meant to prepare for contingencies beyond an individual’s control. A traumatic accident could leave an individual without the ability to manage his or her own financial affairs.
Read more . . .
Monday, August 29, 2016
It seems like a perfect plan. If a consumer is about to declare bankruptcy to discharge all or most of his or her debts, why wouldn’t that consumer try to increase his or her credit card debt as much as possible to maximize the benefit granted by bankruptcy protection? The answer is simple. It won’t work.
Generally speaking, credit card debts are dischargeable in bankruptcy. However, a bankruptcy trustee examines a consumers spending in the months leading up to a bankruptcy petition. If excessive amounts are charged to a credit card prior to the claim being filed, the credit card company may file an adverse proceeding challenging the bankruptcy petition and preventing the debt from being discharged. If luxury items were purchased, or items not necessary for the support and maintenance of the debtor, those charges might not be discharged. Examples of items that might be considered luxury purchases by the court include vacations, expensive clothing or cosmetics, additional vehicles, household furnishings, jewelry, artwork, magazine subscriptions, cameras, and computers. Any charge of more than $650.00 will set off red flags, both with the bankruptcy trustee and the creditor.
If cash advances were taken out in the months immediately preceding the petition, the creditor may sue the consumer for fraud. If the cash advance is for more than $925.00, there is a presumption that the debt is not dischargeable. If a consumer makes payments on the debt prior to declaring bankruptcy, it can help to demonstrate that he or she had intended to repay the debt. Showing that an unexpected life event occurred making the bankruptcy unavoidable can also help a creditor to prove that he or she had no intention to defraud creditors.
If a consumer makes expensive purchases immediately before declaring bankruptcy, it is counter-productive. The debts will not be discharged, meaning that the consumer will still be in debt, even after having completed all the requirements of the Bankruptcy Court. The goods and services purchased will not be worth the debt that remains after the bankruptcy is completed effectively ruining the consumer’s credit without a benefit. The entire Bankruptcy Petition might be dismissed for the attempted fraud. Participating in suspicious spending that might provoke a challenge from a creditor is a bad idea. As inviting as it might seem to load up on debt before seeking a discharge, the system is designed to prevent consumers from doing so.
Monday, August 22, 2016
A person may request entry into the United States as a refugee if he or she is located outside of the United States, can demonstrate that he or she is facing persecution due to race, religion, nationality, political opinion, or membership in a particular social group, is not firmly resettled in another country, and is otherwise admissible to the United States.
In order to begin the process to apply for refugee status, an individual must first be referred to the US Refugee Admissions Program. Having a family member admitted to the United States as a refugee may help the determination. Immediate family members, including spouses and unmarried children under the age of twenty one, can be included in the application. Same sex partners who are unmarried may link their applications and ask to be resettled in the same geographic area. There are no fees to apply for entry to the United States as a refugee. Refugees have a right to expedited processing if they are facing an acute medical or protection problem. Once an individual or family is approved, they will receive a medical examination, a cultural orientation, and a loan for travel expenses.
Refugees are permitted to work immediately upon entering the United States. They must apply for a green card within one year of their entry, but are excused from paying application fees as well as fees for fingerprinting and biometrics. Refugees are permitted to travel abroad, but to reenter the United States, they must first obtain a Refugee Travel Document. If a refugee returns to the country from which he or she originally fled, the refugee must explain the reason for his or her return and how he or she was able to escape persecution. If these travel restrictions are not met, he or she may not be permitted to reenter the United States. Refugees have all the rights of American citizens including the right to free speech, free exercise of religion, freedom of assembly, freedom from unreasonable searches and seizures and self-incrimination, the right to own property, the right to an education and access to housing, the right to petition the courts for relief, and the right to public assistance where appropriate.
Monday, August 8, 2016
In this computer age, when so many tasks are accomplished via the internet -- including banking, shopping, and important business communications -- it may seem logical to turn to the internet when creating a legal document such as a will . Certainly, there are several websites advertising how easy and inexpensive it is to do this. Nonetheless, most of us know that, while the internet can be a wonderful tool, it also contains a tremendous amount of erroneous, misleading, and even dangerous information.
In most cases, as with so many do-it-yourself projects, creating a will most often ends up being a more efficient, less expensive process if you engage the services of a qualified attorney. Just as most of us are not equipped to do our own plumbing repairs or automotive repairs, most of us do not have the background or experience to create our own legal documents, even with the help of written directions.
Situations that Require an Attorney for Will Creation
In certain cases, the need for an estate planning attorney is inarguable. These include situations in which:
- Your estate is large enough to make estate planning guidance necessary
- You want to disinherit your legal spouse
- You have concerns that someone may contest your will
- You worry that someone will claim your mind wasn't sound at the signing
Mistakes and Omissions
It has always been possible to write a will all by yourself, even before the advent of the typewriter, let alone the computer. Such a document, however, is unlikely to deal with the complexities of modern life. Many estate planning attorneys have seen, and often been asked to repair, wills that have mistakes or significant omissions. These experts have also become aware of situations in which the survivors of the deceased wind up in court, spending thousands of dollars to contest ambiguously worded or incomplete wills. Without legal guidance from a competent estate planning attorney, creating a "boxtop" will can result in tremendous financial and emotional risk.
Evidence that Online Wills Are Not Foolproof
Evidence that many other complications can arise when an individual creates a will using generalized online directions can be found in the following facts:
- Each state has its own rules (e.g. requiring differing numbers of disinterested party signatures)
- Even uncontested wills can remain in probate if not executed in an exacting fashion
- Estate planning attorneys find legal software programs inadequate
- Even legal websites themselves recommend bringing in an attorney in all but the very simplest cases
- Some legal websites provide inexpensive monthly legal consultations with attorneys to protect their client and themselves
Areas that Frequently Cause Problems
Self-constructed wills often become problematic when the testator:
- Names an executor who has no financial or legal knowledge
- Leaves a bequest to a pet (legally, you must leave the bequest to an appointed caretaker)
- Puts conditions on payouts to an that are difficult, or impossible, to enforce
- Makes unusual end-of-life decisions or puts living will information into the will
- Designates guardians for children, but neglects to name successor guardians
- Neglects to coordinate beneficiary designations where, for example, the will and insurance policy designations contradict one another
- Leaves funeral instructions into the will since the document will most likely not be read until after the funeral has taken place
- Leaves inexact or ambiguous instructions dealing with blended families
- Neglects to mention small items in the will which, though of small financial value, are meaningful to loved ones and may cause contention
In order to ensure that you leave your assets in the hands of those you wish, and to avoid leaving your loved ones with bitter disputes and expensive probate costs, it is always wise to consult with an experienced estate planning attorney when making a will. In this area, as in so many others, it is best, and safest, to make use of those with expertise in the field.
Monday, July 25, 2016
Bankruptcy Fraud: It cannot be overstated how important it is to tell the truth and accurately disclose all income assets, debts, and other required information when preparing a Bankruptcy Petition. If a Court finds that a Petitioner committed a willful fraud, the Petition will likely be dismissed. The Court may also impose criminal penalties including fines and incarceration.
- Failing the Means Test: In order to be granted a discharge under Chapter 7 Bankruptcy protection a Petitioner’s disposable income must be low enough to pass the means test. The Court compares the Petitioner’s average income for the six month period before filing and compares it to the state median for a similar household. If the Petitioner’s income is below the median, than he or she qualifies automatically. However, if the Petitioner makes more than half median income, the Court must examine the Petitioner’s expenses to determine whether he or she qualifies for a discharge. If the means test is failed, the Trustee will likely offer the Petitioner the opportunity to convert the Bankruptcy to a Chapter 13 reorganization instead of a discharge before dismissing the Petition altogether.
- Failure to Complete Mandatory Credit Counseling Courses: Every Bankruptcy Petitioner is required to complete two credit counseling courses as a part of the Bankruptcy proceeding. The course can be completed online or over the phone. After the course is taken, a certificate proving it was completed must be filed with the Court. If a Petitioner is not in compliance with this procedure, the case will be dismissed by the Trustee.
- Not Paying Filing Fees: If a Petitioner is indigent, he or she may apply for a waiver of Court fees, but unless a waiver is granted, a case will be dismissed for failure to pay filing fees., you may apply for a waiver of your court fees. The court will take into account your income and expenses when granting or denying your waiver. Unless you receive a waiver, the court will dismiss your case if you fail to pay the required filing fees.
- Improperly Completing Forms or Failure to Submit all Required Documents: It is important to take time and ensure that all paperwork filed with the Court is completed properly. If any financial disclosures, forms, schedules, or other documents required by the court are improperly completed or omitted, or if any information is missing, a bankruptcy court might dismiss the Petition. If the trustee requests pay stubs, tax returns, or other documents to verify the information in the Petition, it would behoove the petitioner to get that documentation to the Trustee as quickly as possible.
- Not Attending the Meeting of Creditors: Early on in the Bankruptcy process, the Trustee holds a meeting of creditors to allow a Petitioner’s creditors to appear and ask questions under oath about the papers submitted. This process usually lasts only a few minutes and creditors rarely appear, but if a Petitioner fails to appear, the Trustee will likely dismiss his or her claim.
- Failing to Make Chapter 13 Plan Payments: Reorganization plans under Chapter 13 of the Bankruptcy code are designed to allow Petitioners some breathing room to pay off their debts with more reasonable monthly payments. However, the Petitioner must act in good faith when preparing a repayment plan and afterwards, by actually making the payments. If the payments are not made without a good reason, the Bankruptcy will be dismissed.
Monday, July 18, 2016
Most citizens of the United States are allowed to leave this country freely. The restrictions on entering the destination country, however, are determined by that country. If a visa is required for travel, one must be obtained. If other documents are required, a traveler can find out by contacting the embassy of the destination country. Each country has its own unique requirements for entry with which all visitors must comply. Airlines may have their own requirements, so travelers should check with them as well.
A person’s right to return to the United States requires proper documentation. If a traveler is undocumented, he or she will be not be permitted entry into the United States. Lawful permanent residents should carry their green card for re-entry. They should also bring a foreign passport, national ID, or U.S. driver’s license to confirm their identity, and form I-131, with supporting documents and applicable fees. A customs official will speak with each traveler to determine whether or not his or her stay outside the country violated the terms of residency. If the customs official feels that the traveler has abandoned his or her residence in the United States, the traveler’s status as a permanent resident may be revoked. A customs official may ask questions concerning a traveler’s community and family ties in the United States, about the individual’s work, property ownership, filing of income taxes, or residence. If the stay abroad was for longer than one year, a re-entry permit, form I-131, may be required. Brief trips will not affect a person’s status, but trips of 6 months or more may affect a person’s ability to become a naturalized citizen and may require form N-470 to correct.
Those who do not hold a green card may still be permitted to travel outside of the United States, depending on the type of visa they hold. Those who have an F-1 or M-1 student visa will be able to travel if the trip is for fewer than 5 months, and if their SEVIS form I-20 is up to date and endorsed for travel by the student’s designated school official. Many non-permanent residents, such as K-1 visa holders, are not allowed to travel abroad. For some, the line is blurred. For those who are in the country on a U Visa, international travel is permitted, but should only be engaged in if absolutely necessary as a traveler might miss important USCIS mailings or attempts at communication from law enforcement agencies. If a traveler has previously overstayed a visa before leaving the United States, or if any other condition of residency has been violated, that individual may be denied re-entry. It is important to consult with an experienced immigration attorney before international travel to avoid problems at the border.
Monday, July 11, 2016
Life insurance can be an integral part of an estate plan. Policies can be set up to be paid directly to the beneficiary, without the need to pass through the estate, and without the need for any taxes to be paid. Having a life insurance policy ensures that some assets will be liquid, so that debts and expenses can be paid quickly and easily without the need to dispose of assets. Beneficiaries can be changed at any time as can the benefit amount. The policy can be used to accumulate savings if the plan is surrendered before death. Life insurance policies, especially those purchased later in life, can pay out significantly more than what was invested into them. There are many benefits to purchasing a life insurance policy as part of an estate plan.
An attorney can set up a life insurance trust to help avoid estate taxes. A life insurance trust must be irrevocable, cannot be managed by the policy holder, and must be in place at least three years before the death of the policy holder. Any money received from the life insurance trust is not a part of the taxable estate. The need for this is rare as the exemption for estate taxes is currently almost five and a half million dollars, but it is a useful tool for some nonetheless.
There is a limit to how much life insurance an individual is permitted to purchase. A person may carry a multiple of his or her gross income which reduces with age. A twenty five year old can buy a policy worth thirty times his or her annual income. A sixty five year old may only purchase ten times his or her annual income worth of life insurance. This is an important factor to consider when deciding whether life insurance should be a part of your estate plan.
Life insurance as a part of estate planning is a complicated issue. It makes sense to consult with an estate attorney and a tax professional before meeting with an insurance broker. Both can help an individual understand the benefits of insurance over other means of transferring assets.
Monday, June 27, 2016
While there are certain debts that cannot be discharged through bankruptcy proceedings, such as college loans or child support payments, for most people bankruptcy is available as a protection from overwhelming debt. Nonetheless, certain circumstances can result in your being denied the entire discharge, leaving you responsible for all outstanding debt. Alarming as this may sound, as long as you have been open and honest with your creditors, you should have nothing to worry about.
Reasons for Denial of Chapter 7 Bankruptcy Discharge
The primary reasons you may be denied Chapter 7 bankruptcy discharge are all based on dishonest and/or illegal behavior. These reasons include:
Attempt to Defraud
If you have transferred, destroyed or concealed property within a year before, or at any time after, filing for bankruptcy, you may be accused of attempt to defraud and lose your right to file for bankruptcy protection. For this reason, it is extremely important that you be completely honest with your attorney about any transactions involving property that may have occurred, even if such transactions took place without any intent to defraud.
Lack of Sufficient Information
Any failure to maintain sufficient records about your finances during the period in question may result in your being accused of destroying, mutilating, or falsifying pertinent data. You have to be able to back up your assertions with proper recorded information.
The point has already been made that honesty is not only the best, but the only policy that will help you file for bankruptcy. When you file for bankruptcy protection, you take an oath that everything in your statement is true and accurate. You are therefore open to perjury charges if you are not completely honest with your attorney and with the court.
Inexplicable Loss of Assets
You are responsible for your own financial record-keeping and will be held accountable if you cannot explain to the satisfaction of the court where certain assets have gone.
Refusal to Comply with a Court Order
If the debtor fails to obey a lawful court order during the proceedings, he or she has forfeited the right to bankruptcy protection.
Failure to Take an Instructional Course on Debt Management
Under the bankruptcy code, debtors must take two instructional courses, one in credit counseling before the proceedings can begin, and a second one in financial management that must be completed during the case. The second one must be completed as a prerequisite for getting debt discharged through the bankruptcy proceeding.
How to Avoid Being Denied Bankruptcy Protection
It is always best to work with a skilled and experienced attorney when you are preparing to file for bankruptcy. Having an attorney who specializes in bankruptcy proceedings is important because such a professional will not only help you to achieve the most effective resolution of your debt problem, but will guide you through the procedure with as little turmoil as possible. It is crucial that you choose an attorney with whom you have a personal rapport, one you can trust implicitly and with whom you can be completely honest.
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.