Affiliated Attorneys, LLC Blog
Monday, May 11, 2015
If you are a parent and you are considering estate planning, one of the most difficult decisions you will have to make is choosing a guardian for your minor children. It is not easy to think of anyone else, no matter how loving, raising your child. Yet, you can make a tremendous difference in your child’s life by planning ahead.
The younger your child, the more crucial this choice is, because very young children cannot form or express their own preferences about caregivers. Yet young children are not the only ones who benefit from careful parental attention to guardianship. Children close to 18 years old will be legal adults soon, but, as you well know, may still need assistance of a parental figure after the fact.
By naming and talking about your choice of guardian, you can encourage a lifelong bond with a caring family. The nomination of guardians is a straightforward aspect of any family’s estate plan. It can be as basic or detailed as you want. You can simply name the guardian who would act if both you and your spouse were unable to or you can provide detailed guidance about your children and the sort of experiences and family environment you would like for them. Your state court, then, can give strong weight to your expressed wishes.
There are essentially four steps to this process. First, make a list of anyone you know that might be a candidate for guardian of your children. It is important to think beyond your sisters and brothers and consider cousins, aunts and uncles, grandparents, child-care providers and business partners. You might also want to consider long-time friends and those you’ve gotten to know at parenting groups as they may share similar philosophies about child-rearing. Second, make a list of factors that are most important to you. Here are some to consider:
- Child-rearing philosophy
- Presence of children in the home already
- Interest in and relationship with your children
- Ability to meet the physical demands of child care
- Presence of enough “free” time to raise children
- Religion or spirituality
- Marital or family status
- Potential conflicts of interest with your children
- Willingness to serve
- Social and moral habits and values
- Willingness to adopt your children
You might find that all or none of these factors are important to you or that there are others that make more sense in your particular situation. The third step is to, match people with priorities. Use the factors you chose in step two to narrow your list of candidates to a handful.
For many families, it is as easy as it looks. For others, however, these three steps are fraught with conflict. One common source of difficulty is disagreement between spouses. But, consensus is important. Explore the disagreements to see what information about values and people is important to one another and use all of your strongest communications skills to understand each other’s position before you try to find a solution that you can both feel good about. Step four is to make it positive. For some parents, getting past this decision quickly is the best way to achieve peace of mind and happiness. For others, choosing a guardian can be the start of an intensive relationship-building process. An attorney who understands where you and your spouse fall on that spectrum can counsel you appropriately.
Monday, April 27, 2015
Cosigners are supposed to be a protection against default that a lender can rely on to make payments if the primary borrower cannot. Sometimes, however, the cosigner ends up being the borrower with financial difficulties. When that happens, the primary borrower needs to take special care to ensure that he or she does not become impacted by the cosigner’s money problems.
Here are a few examples of what could happen if the cosigner on your car loan files for bankruptcy.
- If you, as the primary borrower, have been making all the payments, your cosigner’s bankruptcy will have little impact on you so long as you continue to make all the required payments. If you stop making payments, the car could be pulled into your cosigner’s bankruptcy estate and sold off to pay down your cosigner’s debt.
- If your cosigner has been paying part or all of your car payments, you need to step up and start making the payments so the debt continues to be paid on time. If the lender is repaid as promised, the car will not be pulled into the cosigner’s bankruptcy estate even though he or she was putting some of his or her money toward the car loan.
- If the car loan is already in arrears at the time the cosigner files for bankruptcy, the car will likely be pulled into the bankruptcy estate. If that happens, it will likely be sold to pay off some of the cosigner’s debt.
In sum, the lender does not really care who is making the payments, as long as the payments are made. If the lender is not getting paid, it might result in an attempt to repossess the car.
Cosigning a car loan is always risky because cars begin to lose value the second they are driven off the lot. This makes it likely that the car will be worth less than the loan for a good chunk of the repayment period. Cosigning is especially risky if you do not have the ability or the intention to make the car payments you agreed to make.
If you are the primary borrower on a loan and your cosigner is filing for bankruptcy, contact an experienced attorney today for advice on your specific case.
Monday, April 20, 2015
The dragging economy has been tough on immigrants. An overabundance of citizens looking for work limits the number of some types of visas, and instability in the job market limits the appeal of employment-backed visas. Many workers who have lost their jobs because of the economic slowdown have had to leave the United States in order to avoid violating the law and jeopardizing their ability to live in this country in the future. However, some immigrant workers are finding ways to stay in the United States legally despite being laid off.
- Find another job. This is somewhat easier said than done, but workers who are able to find new employment can often extend their visa or get a new visa. This works best if the worker knows in advance that his or her current job will soon be ending and can find a new job to start before the old job ends.
There is technically no grace period in which to find a new job when a worker’s job ends (meaning a worker is out of status as soon as they clock out for the last time), but U.S. Citizenship and Immigration Services (USCIS) often approves petitions to change from one employer to the next if the gap between jobs is 30 days or less.
If a worker is out of work, and thus out of status, for more than 30 days, he or she will probably have to leave the country and get a new visa at a United States consulate office before starting a new job.
If a worker does have to travel abroad to get a new visa, the worker’s former employer may be required to pay for the worker’s trip home. Whether the employer is required to pay depends on when and how the worker’s job was terminated.
- Become a dependent. If a worker in the United States on an employment-backed visa loses his or her job, one of the easiest ways to stay in status and prevent deportation is to become the dependent of someone who has legal status. Obviously, this only works if family circumstances allow.
It is important to note that if, for any reason, the worker's family member loses his or her legal status, then the worker who has become that person's dependent will lose his or her status as well.
- Go to school. Workers who lose their jobs may have their status changed to student (F-1 status) if they are accepted into a full-time program at a college or university.
The further in advance a worker knows his or her job is in jeopardy, the easier it is to find a solution that will allow him or her to stay in the country legally. However, it is never too late to contact an experienced immigration attorney.
Monday, April 13, 2015
An executor's fee is the amount charged by the person who has been appointed as the executor of the probate estate for handling all of the necessary steps in the probate administration. Therefore, if you have been appointed an executor of someone’s estate, you might be entitled to a fee for your services. This fee could be based upon a variety of factors and some of those factors may be dependent upon state, or even local, law.
General Duties of an Executor
- Securing the decedent's home (changing locks, etc.)
- Identifying and collecting all bank accounts, investment accounts, stocks, bonds and mutual funds
- Having all real estate appraised; having all tangible personal property appraised
- Paying all of the decedent’s debts and final expenses
- Making sure all income and estate tax returns are prepared, filed and any taxes paid
- Collecting all life insurance proceeds and retirement account assets
- Accounting for all actions; and making distributions of the estate to the beneficiaries or heirs.
This list is not all-inclusive and depending upon the particular estate more, or less, steps may be needed.
As you can see, there is a lot of work (and legal liability) involved in being the executor of an estate. Typically the executor would keep track of his or her time and a reasonable hourly rate would be used. Other times, an executor could charge based upon some percent of the value of the estate assets. What an executor may charge, and how an executor can charge, may be governed by state law or even a local court's rules. You also asked whether the deceased can make you agree not to take a fee. The decedent can put in his or her will that the executor should serve without compensation but the named executor is not obligated to take the job. He or she could simply decline to serve. If no one will serve without taking a fee, and if the decedents will states the executor must serve without a fee, a petition could be filed with the court asking them to approve a fee even if the will says otherwise. Notice should be given to all interested parties such as all beneficiaries.
If you have been appointed an executor or have any other probate or estate planning issues, contact us for a consultation today.
Monday, March 23, 2015
Divorce can wreak havoc on your finances and may even lead you to file for bankruptcy. When the worlds of family law and bankruptcy law collide, it can be somewhat confusing. In essence, both areas of law allow people to start fresh, but at the intersection of these two areas is an anchor that holds parties to previous obligations.
For over 100 years, alimony has been an absolute obligation owed by one ex-spouse to the other after the dissolution of the marriage. It arose because traditional gender roles (and, in many cases, the law) prevented women from earning a living independent of their spouses and did not consider women co-owners of marital property. Alimony became the law’s way to allow for divorces without creating a class of destitute women.
In this day and age, either a husband or wife can be awarded alimony payments depending upon which spouse is the primary breadwinner. It is not uncommon for a man to be awarded alimony by a divorce court.
Even with changes in social norms and the law, ex-spouses are still treated sympathetically, even in the world of bankruptcy. Alimony is one of the few debts that is not dischargeable in bankruptcy, and it is one of the few sources of income that is exempted from bankruptcy proceedings under federal law. If a person receiving alimony payments files for bankruptcy, that money will be counted as income when the court does a means test to determine if the debtor can file for Chapter 7 bankruptcy, but it will be exempted from the bankruptcy estate, and thus unreachable by creditors.
If you are going through a divorce, or are already divorced and are receiving alimony payments, and you are considering filing for bankruptcy, an experienced attorney can assist you in making this decision and explaining the effect it will have on your finances.
Monday, March 16, 2015
Section 212 of the Immigration and Nationality Act (INA) bars individuals from entry in the United States for a variety of reasons. These include terrorism-related inadmissibility grounds (TRIG).
Regardless of whether a person is coming to the U.S for tourism or employment, and regardless of whether he or she has married a U.S. citizen or won a visa lottery, TRIG may bar entry completely.
Types of Terrorism-Related Activities That May Be Covered
Terrorism-related activities include some that are violent and illegal, others that involve association with and support of causes or people involved in terrorism. For example, a person who engages in terrorist acts, who has received military training from a terrorist organization, who has incited terrorist activity, or who has endorsed or espoused terrorism would be inadmissible. So too would a spouse or child of anyone who engaged in terrorist activity during the preceding five years.
The INA's definition of terrorist activity covers various types of sabotage, assassination, kidnapping, hijacking, and other acts commonly associated with terror.
"Engaging in Terrorist Activity" can involve planning and carrying out a terrorist act, but it can also be recruiting others to act, providing support, fundraising, or other help. Providing a safe house, transportation or fake documents might constitute material support of a terrorist group. So would feeding members of the group, distributing literature, or making a modest financial contribution.
Categories of Terrorist Organizations
Terrorist organizations are divided into three tiers:
- Tier I includes Foreign Terrorist Organizations (FTO) that threaten the security of the U.S. or U.S. citizens.
- Tier II includes groups on the Terrorist Exclusion List (TEL). These are organizations that carry out or provide material support for terrorist acts that are unlawful under U.S. law or the laws of another country.
- Tier III involves groups of two or more, organized or not, that are engaged in terrorist activity. A less formal designation than the others, Tier III changes from time to time and determinations of who is affected are made on a case-by-case basis.
The Secretary of State and the Secretary of Homeland Security can exempt some individuals from TRIG. Exemptions have been issued to people who acted under duress, to people who provided voluntary medical care, and to selected individuals with existing immigration benefits. Because the definition of terrorist activity is broad, potentially encompassing freedom fighters, group exemptions have been given to a number of organizations ranging from the All Burma Students Democratic Front to the Democratic Movement for the Liberation of Eritrean Kunama.
Being involved in terrorism is a serious matter and can have an effect on the ability to obtain U.S. citizenship. For more information regarding TRIG or if you think you might be exempt from exclusion, contact an experienced immigration attorney today.
Monday, March 9, 2015
When deciding who will inherit your assets after you die, it is important to consider that you might outlive the beneficiary you choose. If you have added someone to your financial accounts to ensure that he or she receives this asset after you die, you might be concerned about what will happen should you outlive this person.
What happens to a joint asset in this situation depends upon the specific circumstances. For example, if a co-owner that was meant to inherit dies first, the account will automatically become the property of the other co-owners and will not be included in the decedent’s estate. However, whether it is somehow included in this person’s taxable estate, and is therefore subject to state death tax, also depends on state law. Assuming the other co-owners were the only ones to contribute to this account, and that the decedent did not put any of his or her money into the account, there may be state laws that provide that these funds are not taxed. The other co-owners might have to sign an affidavit to that effect and submit it to the state department of revenue with the tax return. Also, if the decedent’s estate was large enough to require the filing of a federal estate tax return ($5,340,000 in 2014) the same thing may be needed in order to exclude this money from his or her taxable estate. You would generally state that this person’s name was placed on the account for convenience, and that the money was contributed by the other co-owners.
If you are considering adding someone to your financial accounts so that they inherit it when you die, you should contact an experienced estate planning attorney to discuss your options.
Monday, February 23, 2015
Since the bankruptcy laws were overhauled in 2005, debtors have been required to complete two classes as part of every Chapter 7 or Chapter 13 bankruptcy case. Each debtor must take a Credit Counseling class prior to filing the bankruptcy petition; and they must complete a Personal Financial Management class prior to discharge. The Credit Counseling class is designed to focus on existing debts, while the Personal Financial Management session addresses budgeting and financial management issues. Both are an integral component of the bankruptcy proceeding.
Both debtor education classes are available in person or online from a variety of providers. A certificate of completion for each class must be filed with the court. If you do not provide the court with the certificate of completion for the Credit Counseling class, your case will be dismissed and you’ll have to re-file. If you do not provide the certificate of completion for the Personal Financial Management course, your case can be closed without a discharge order being issued. Without that discharge order, you still owe all of your debts and your bankruptcy filing will have been for naught.
To help ensure your bankruptcy goes smoothly, take both classes before the required deadlines and make sure you file both certificates of completion with the court. Verify that the course provider is a not-for-profit credit counseling agency which is approved by the Department of Justice’s U.S. Trustee Program. Your bankruptcy attorney can help you find a suitable provider and take care of filing the required certificates.
Monday, February 16, 2015
Adopting a child from a foreign country can be an incredible experience for both the parent and the child but it is not an easy process. Even after the exhausting process of finding the right child, the adopting parents must work with officials from the U.S. Citizenship and Immigration Services Department in order to bring the child home to the U.S.
There are three different ways for U.S. citizens to adopt a child internationally. They are Hague, Orphan (Non-Hague) and adopting an immediate relative. The Hague process applies to children who are in countries that are a party to the Hague Intercountry Adoption Convention. The Orphan process applies to children who are in countries that are not a party to the Hague Convention.
In Hague adoptions, parents will typically choose an Adoption Service Provider that is Hague Accredited. An Adoption Service Provider will assist the parents with the adoption. Parents will next complete a home study from an authorized provider. Before adopting a child, parents need to apply to U.S. Citizenship and Immigration Services (USCIS). Once USCIS approves the application, parents will work with an Adoption Service Provider to get a placement. Once a placement is found, the parents will file a petition with USCIS, and will then adopt the child. Upon adoption, the parents will obtain an immigrant visa for the child, and will transport the child to the U.S.
Non-Hague adoptions, or Orphan adoptions, apply to foreign-born children who either don’t have any parents, or have one parent who’s unable to care for the child and signed a document to that effect. As part of the case, the USCIS will investigate to verify that particular child is an orphan before allowing the adoption. Much of the rest of the adoption is similar to a Hague adoption – the adopting parents will need a home study and a visa for the adoptive child.
Monday, February 9, 2015
If you have a child who is addicted to drugs or alcohol, or who is financially irresponsible, you already know the heartbreak associated with trying to help that child make healthy decisions. Perhaps your other adult children are living independent lives, but this child still turns to you to bail him out – either figuratively or literally – of trouble.
If these are your circumstances, you are probably already worrying about how to continue to help your child once you are gone. You predict that your child will misuse any lump sum of money left to him or her via your will. You don’t want to completely cut this child out of your estate plan, but at the same time, you don’t want to enable destructive behavior or throw good money after bad.
Trusts are an estate planning tool you can use to provide an inheritance to a worrisome heir while maintaining control over how, when, where, and why the heir accesses the funds. This type of trust is sometimes called a spendthrift trust.
As with all trusts, you designate a trustee who controls the funds that will be left to the heir. This trustee can be an independent third party (there are companies that specialize in this type of work) or a member of the family. It is often wise to opt for a third party as a trustee, to prevent accusations among family members about favoritism.
The trust can specify the exact circumstances under which money will be disbursed to the heir. Or, more simply, the trust can specify that the trustee has complete and sole discretion to disburse funds when the heir applies for money. Most parents in these circumstances discover that they wish to impose their own incentives and restrictions, rather than rely on the judgment of an unknown third party.
The types of conditions or incentives that can be used with a trust include:
Drug or alcohol testing before funds are released
Payments directly to landlords, colleges, etc., rather than payment to the heir
Disbursement of a specified lump sum if the heir graduates from university or keeps the same job for a certain time period
Payment only to a drug or alcohol rehab center if the child is in an active period of addiction
Disbursement of a lump sum if the child remains drug free
Payments that match the child’s earned income
If you are considering writing this type of complex trust, it is advisable to seek assistance from a qualified and experienced estate planning attorney who can help you devise a plan that best accomplishes your wishes with respect to your child.
Monday, January 26, 2015
Many of us have been lucky enough to acquire timeshares for the purposes of vacationing on our time off. Some of us would like to leave these assets to our loved ones. If you have a time share, you might be able to leave it to your heirs in a number of different ways.
One way of leaving your timeshare to a beneficiary after your death is to modify your will or revocable trust. The modification should include a specific section in the document that describes the time share and makes a specific bequest to the designated heir or heirs. After your death, the executor or trustee will be the one that handles the documents needed to transfer title to your heir. If the time share is outside your state of residence and is an actual real estate interest, meaning that you have a deed giving you title to a certain number of weeks, a probate in the state where the time share is located, called ancillary probate, may be necessary. Whether ancillary probate is needed will depend upon the value of the time share and the state law.
Another way you could accomplish this goal is to execute what is called a "transfer on death" deed. However, not all states have legislation that permits this so it is imperative that you check state law or consult with an attorney in the state where the time share is located. A transfer on death deed is basically like a beneficiary designation for a piece of real estate. Your beneficiary would submit a survivorship affidavit after your death to prove that you have died. Once this document is recorded the beneficiary would become the title owner.
It is also important to investigate what documents the time share company requires in order to leave your interest to a third party. They may require that additional forms be completed so that they can bill the beneficiary for the annual maintenance fees or other charges once you have died.
If you want to do your best to ensure that your loved ones inherit your time share, you should consult with an experienced estate planning attorney today.
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.