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Monday, May 25, 2015

Effects of Bankruptcy on an Inheritance

If you are expecting an inheritance but considering personal bankruptcy, you might be concerned about what will happen. Whether an inheritance gets pulled into an ongoing bankruptcy proceeding depends on the size and form of the inheritance, the type of bankruptcy filed, and the timing of the death of the person leaving the inheritance relative to the filing of the bankruptcy proceeding.

Size and Form of the Inheritance

The word “inheritance” is most often associated with money; however, many estates consist of far more than cash. The nature of the item inherited can determine whether it is pulled into the bankruptcy estate of the recipient. For example, a vacation cabin on the lake that is passed down to multiple family members is going to be treated differently by the bankruptcy court than a few shares of stock willed to an individual.

Type of Bankruptcy

There are two different chapters under which most debtors file for personal bankruptcy: Chapter 7 and Chapter 13. In a Chapter 7 case, the bankruptcy trustee can typically take the inheritance and liquidate it in order to pay off creditors, unless the debtor has an exemption they can use to protect it. In a Chapter 13 case, the debtor is more likely to be able to keep the inheritance, but he or she could see the repayment obligations to creditors increase.

Timing Issues

Whether an inheritance is part of the bankruptcy estate, and thus reachable by creditors, depends largely on when the bankruptcy was filed relative to when the person who left the inheritance passed away.

If the person who left the debtor the inheritance died within 180 days of the bankruptcy, the inheritance is part of the bankruptcy estate. There are two important things to note about this rule. First, it is the date of death, not the date that an inheritance is received, that matters. Second, the 180 days count both backward from the date of filing and forward from the date the bankruptcy is closed.

If you are currently going through a bankruptcy without the assistance of an attorney, or you are considering filing a bankruptcy and you have received notice of an inheritance (or even if you think you might be inheriting something in the near future), it is important to seek advice from an experienced bankruptcy attorney.


Monday, May 18, 2015

Abusive Relationships, Divorce and Immigration

If you are in an abusive relationship but are afraid leaving your spouse will jeopardize your or your children’s immigration status, you are not alone. The law is on your side, and an experienced attorney can help you break free from your abuser’s control and secure your immigration status.

Abuse can take many forms -- physical harm, forced sexual relations, emotional manipulation (including isolation or intimidation), and economic and/or immigration-related threats; the law recognizes this and provides an escape. There are three ways immigrants who become victims of domestic abuse may apply for legal immigration status:

  • Self-petitions for legal status under the Violence Against Women Act (VAWA)
  • Cancellation of removal (also known as deportation) under the VAWA
  • U-nonimmigrant status for victims of crime

A lawyer can help you determine which option is right for you and your children, and help you file the appropriate documents. All of the options above are confidential, so your abuser and other people will not know you have applied unless you tell him or her.

Marriage is not supposed to be a trap. Your immigration status should not prevent you from leaving a relationship that is harmful to you or your children.

If you or your children are in immediate danger, do not hesitate to call 911. Tell the police what you fear is about to happen, and be prepared to tell them about any abuse that has happened in the past. The police may arrest your spouse, and/or other people, if a crime has been committed. Once you are out of harm’s way, you can seek legal assistance from an attorney to help you gain a more permanent solution to your problems.

If you are not in immediate danger, it is a good idea to reach out to an attorney with experience handling these types of cases as this can be a confusing area of law. Having someone that can guide you along the way is critical.


Monday, May 11, 2015

Choosing a Guardian for Minor Children

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:

  • Maturity
  • Patience
  • Stamina
  • Age
  • Child-rearing philosophy
  • Presence of children in the home already
  • Interest in and relationship with your children
  • Integrity
  • Stability
  • 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

Effects of a Cosigner's Bankruptcy on Your Assets

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

Effects of a Lay Off on Employment Sponsored Visa

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

Executors Fees

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

  1. Securing the decedent's home (changing locks, etc.)
  2. Identifying and collecting all bank accounts, investment accounts, stocks, bonds and mutual funds
  3. Having all real estate appraised; having all tangible personal property appraised
  4. Paying all of the decedent’s debts and final expenses
  5. Making sure all income and estate tax returns are prepared, filed and any taxes paid
  6. Collecting all life insurance proceeds and retirement account assets
  7. 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

Are Alimony Payments Seized in Bankruptcy?

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

When Will an Immigrant Be Barred from Entry Because of a Connection to Terrorism?

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.

Exemptions

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

Problems with Using Joint Accounts as a Vehicle for Inheritance

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

Debtor Education: Two Classes

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 Internationally? Immigration Issues to Consider

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.


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