Step 1: Locate a will

This step in the journey begins with locating a will as the will contains the decedent’s instructions on the persons to be involved in the probate process.  Specifically, the will should nominate a personal representative to carry out the deceased’s wishes and provide the names of those chosen to receive assets.

Please note that these steps are largely the same whether or not a will is located.  What’s different then?  The difference is in the outcome.  With a will, the deceased’s stated wishes rule the day.  Without a will, the Minnesota State Legislature’s wishes trump any unwritten desires the deceased may have had.

Step 2: Choose the type of probate proceeding that’s most appropriate.

Next, a decision must be made as to the type of probate needed to carry out the person’s last wishes.  The types of probate are formal versus informal and supervised versus unsupervised.  We will discuss each of the types of probate in a later post in this series, but just know that the type of probate process chosen largely depends on how much court oversight may be needed in carrying out the decedent’s wishes. 

Step 3: Filing with the court

Once the decision is made as to whether to proceed formally or informally, an interested person (i.e. one who has a tangible interest in the outcome of the process) must file a petition/application with the probate registrar/court together with the original will.  Most likely, the person nominated as personal representative in the will files these documents. 

The  probate court will then review will to verify that it meets the requirements to be a valid legal will.  If there is doubt about the signature on the will, those who witnessed its execution may be forced to appear in court. As explained in prior posts, this can be avoided with the use of a self-proving affidavit.

The probate court will also look to the will to determine the deceased person’s choice for personal representative.  If there is no will, then the courts will appoint a personal representative.  The court will then issue a Notice of Probate.

 Step 4: Provide Notice of Probate

Upon receipt of the Notice from the court, the personal representative must provide that Notice to all heirs, regardless of whether they are named in the will, and to all those listed – individuals and charities – to receive assets.

The personal representative must also publish notice of the probate for two weeks in an approved newspaper. It is through this announcement that creditors are informed of the deceased’s death.  They have four months to announce claims to the monies belonging to the deceased.   Proof of publication and notice must be filed with the court. A later post will discuss claims and challenges to an estate.

Step 5: The Court Appoints a Personal Representative

Once the court accepts all the filings and verifies compliance with other requirements (e.g. notice and publication), the personal representative will be appointed with proof being provided by a document called the Letters Testamentary.  This document provide authorization to the personal representative – and reliance by institutions -  to move forward in handling the deceased’s legal and financial matters.

The next post will address the various types of probate proceedings and the factors involved in determining the best way to proceed.

Related articles

• Probate for Unique Families: Part I (uniqueestatelaw.com)
• The Probate Process: Part II (uniqueestatelaw.com)

Disability insurance by definition replaces lost income due to a sickness or injury where you are unable to work. Sometimes people are able to work through a partial disability at their current job, decrease hours or find other suitable work until their situation hopefully turns for the better. Nonetheless, people must pay their bills, keep a roof over their head and feed their families throughout the disability.

Some Facts

According to the May 2000 Norton Bankruptcy Adviser, 326,441 families that filed for bankruptcy protection in 1999 identified an illness or injury in their family as the major reason for the bankruptcy. That means 1 in 4 debtors in 1999 were attributed to a disability.

Still not concerned? According to the US Housing and Home Finance Agency only 3% of home mortgage foreclosures are due to a death of the breadwinner. 48% of all foreclosures are due to a disability.

The corporate employee with benefits

A group disability policy at your average corporate employer will many times will pay up to 66% (pre-tax) benefit for a long-term disability, if you are determined medically unable to work your current job according to the definition in the policy. Many times the employer pays the employee’s premium as part of their total benefits package (in lieu of paying a higher salary). At the end of the day, receiving a 66% (pre-tax) benefit you would experience living on half your normal income while laid up at home. Is that enough? Many times corporate employees buy supplemental disability insurance because living on half their income for any length of time would be devastating.

The small business owner/employee/entrepreneur without benefits

Where do I buy disability insurance (or income protection)? Your local insurance advisor can help you attain a policy that will cover the amount of income you need in the event of a partial or total disability. This type of policy pays an after-tax benefit. These policies have options to increase benefits for keeping up with cost of living.

Related articles

• Financial Friday: The Different Types of Life Insurance (uniqueestatelaw.com)
• Financial Friday: Protect Your Loved Ones With Life Insurance (uniqueestatelaw.com)
• Financial Friday: Both Permanent life Insurance and Invested Assets are the Pillars of Financial Stability and Wealth Building (uniqueestatelaw.com)
• Life insurance: a vehicle to address special concerns of unmarried couples and the unique family. (uniqueestatelaw.com)
• Financial Friday: Why I Don’t Want to Buy Life Insurance (uniqueestatelaw.com)

Image via Wikipedia

Today is the day that the California Supreme Court hears arguments on whether or not Proposition 8 backers are entitled to appeal the Federal ruling that overturned the 2008 “Proposition 8″ ban on gay marriage.

In the words of the LA Times:

The court’s ruling, due 90 days after argument, will determine whether all initiative sponsors in California are legally entitled to defend their measures in state court when the governor and the attorney general refuse.

If the court rules against the initiative backers, then a federal appeals court is more likely to rule that ProtectMarriage.com, the sponsor of Proposition 8, also lacks standing under federal law and “Proposition 8 dies because no one will defend it,” said Vikram Amar, UC Davis constitutional law professor.

This is a very tricky case for gay marriage supporters in California, and the entire US, truthfully.  The outcomes of this case could lead to an eventual Supreme Court ruling.  In different times, perhaps, that might be a good thing.  The Supreme Court was a strong advocate for the Civil Rights movement during the late 1950′s and 1960′s.  That Court and its progressive, sympathetic members no longer exist today.  Today’s Court swings conservative, and it is very possible that taking an initiative to the US Supreme Court could result in a loss of potential marriage rights instead of making any permanent gains towards equal rights.

Stay tuned for more developments.

Related articles

• Judge Will Consider Motions to Unseal the Prop 8 Tapes Today (uniqueestatelaw.com)
• Breaking: Gay Judge in Prop 8 Case Not Required to Recuse Himself (thegayestate.com)

Of course, in order for the probate court to test your will, you actually need to execute one.  As discussed in a prior post, the process for creating a valid Minnesota will is not difficult.  The will needs to be in writing, signed by you in front of two witnesses and notarized.  You should also execute a self-proving affidavit, which prevents anyone from challenging the validity of your signature on the will.

Anyone can create a legal will, but having an estate planning lawyer work with you to create your will is especially important for unique families.  “Out of the box” will forms are not made to address unmarried couples, stepchildren, pre-adoption children, second marriages or any other situation outside the narrow vision of the state legislature’s definition of family.

In order to avoid challenges during the probate process, a will must be clear, specific, and valid.  There must be no doubt about how you want to distribute your assets. A lawyer can make sure that the probate court has no cause for doubt or question with regard to your wishes.

Keep in mind that even if you don’t execute a will, the probate court will still determine how to distribute your assets.  But, instead of following written instructions set forth by you in a will, the court will follow the written instructions set forth by the Minnesota legislature.  For most non-traditional families, there is a slim chance that the Minnesota legislature “got it right” in determining where you want your assets to end up.  Working with a lawyer will keep these decisions in your hands – not the government’s.

Part III of this series will explain what exactly happens when a will is filed.  

Related articles

• Probate for Unique Families: Part I (uniqueestatelaw.com)
• Life After Death, Part 1: Protecting the Lives of Loved Ones After your Death (uniqueestatelaw.com)
• Life After Death, Part 2: Protecting the Lives of Loved Ones After your Death (uniqueestatelaw.com)

Support for Gay Marriage -- Image by Getty Images via @daylife

Gay marriage is obviously a hot topic for me, not only because of how it affects unique families and non-traditional families, but also because of the legal implications to lawyers who practice estate and family law. With “traditional”, aka “Federally supported”, marriages my job takes less time and due diligence to ensure that the families are protected when a loved one dies or is incapacitated.

Gay marriage at the state level actually makes things trickier because it is not Federally-recognized. In those states where gay marriage is legal, separate tax records must be kept and the same amount of paperwork is filed for estate planning because of how the IRS views same-sex and unique couples as it would be if there were no gay marriage in that state at all. Still, from a purely social perspective and no thoughts to probate laws, wills, succession planning, etc. I am highly interested in how cases like this will play out.

The American Foundation for Equal Rights has made a motion to have the the video proceedings of the Proposition 8 Trial made public. This is a PR move on the part of the American Foundation for Equal Rights because they believe that were the American public to see the arguments made against gay marriage, see the “ugliness” in some of the dialog that they would understand how divisive it can be to vote on someone else’s essential rights. I would hope that something like this could change hearts and minds, but I’m cynical. I’ll wait and see.

I will say, however, that I am glad to see that there is a momentum to the movement and that people are continuing to push hard for equal rights.

Until the day that we have a full-recognized legal marriages for gay and lesbian families, I will keep doing what I do every day to protect the rights of gay and lesbian families, single parent families, and other non-traditional families who are overlooked by current laws.

A Unique Will: Image by The National Archives UK via Flickr

As an estate lawyer handling the cases of unique families (gay and lesbian, single mothers, grandparents raising children, etc) I manage a lot of unique cases and have witnessed many probate outcomes – both fair and unfair.  I’ve had the opportunity to be placed in a position where I can now see the little bumps in the road before they happen.  Before I continue onto my point about air tight wills in Part II of this series, let me run you through a few terms.  

“Probate” is simply the process of administering the estate of a deceased person, looking at all claims to money or other assets, administering monies and items fairly and as close to the wishes of the deceased as they are known through the documentation.

During the probate administration process, what is known as a “probate court” will validate and test the will (I will cover this in Part II).  Once this is completed, the court will then interpret the wishes of the deceased person and appoint the executor of the estate.  Post appointment of the executor, the probate will serve the purpose of adjudicating disputes to the will and determining the value of any claims made to the estate by outside parties.

Whenever you have outside interest in a will, as usually happens with unique families, you will have many probate disputes.  Your lawyer should anticipate this and work to create the most reliable will to protect your family as possible.  In Part II we will discuss measures that can be taken to protect your unique family.  As an estate lawyer who deals with the wills of non-traditional families I am well prepared to help you with this.

New Yorkers Celebrate Image by Getty Images via @daylife

Last week I posted on an ongoing deportation case involving Mexican national Sujey Pando, the legally married wife of Violeta Pando. I brought attention to it as a way of explaining the differences that arise when someone is married in a state’s eyes only versus having the Federal protections of marriage. Recent developments in this case are both heartening and at the same time still remarkably insufficient.

The judge in this case, Judge Mimi Tsankov, halted the deportation using her authority to “set aside” the original purpose of the hearing (deportation proceedings) in order to consider the procedural posture of the case. In the end the judge cited the recent statements by the Obama administration on “prosecutorial discretion” as reason to halt the proceedings until more definitive instruction could be utilized.

Many people–most importantly the Pandos– were excited by this recent development and choose to see it as evidence of growing acceptance of gay and lesbian families. I do, too, but I also see it as still being too uncertain and ad hoc for my liking. Yes, I know I am a glass is half-empty kind of attorney. Repeal of DOMA is needed to help support unique and non-traditional families or else cases such as these will continue to go before the courts creating a confusing patchwork of quasi-marriage rights.

Gay and lesbian families are still forced to do “double duty” in protecting their families. They must still tackle additional estate planning hurdles and seek other legal protections to keep their families intact.

For more up to date information on this case check out Stop the Deportations.

Keeping the Business in the Family

Sorry folks that this one is a little late.

Part I of this series on Business Succession Planning dealt with whether or not you need to create a business succession plan.  A quick recap: a business succession plan is needed by anyone who owns and operates their own business, whether you want to keep it in the family or not.  My reasons/justification is this: what happens if you should be injured and unable to run things?  Who keeps it going while you are incapacitated?  How do they know what to do?  Who is legally able to open, pay, or dispute bills in your absence?

Now, it is time to talk about what going into a Business Succession Plan.

A Business Success Plan should be able to articulate the following in such a manner that there is no equivocation:

1. The ultimate goals for the business with respect to the owner(s) and the company.
2. The transition of ownership (when transition occurs and to whom)
3. Facilitation measures (who will assist (if anyone) the successor(s), funds transfer, etc)
4. Relinquishment of owner(s) (acknowledgement and instructions)

The plan should outline what the original owner(s) intended for the business, who has a claim to ownership (this includes if there are partners to the business), roles and responsibilities of successor and partners, is there “life insurance” or other funds set aside to provide transition funds should the owner die (versus become incapacitated), transition triggers, acknowledgement of plan by business owners and successors.  A business succession plan should include any “Cross Purchase Agreement” between owner/partners and a how the price should be determined.  Lastly, for companies that are being handed down or will be entrusted to family members (as opposed to sold) a business success plan should include those steps required to educate the new owner/operator in business operations and any consultants or temporary managers that will assist during the transition process.

They aren’t particularly complicated documents to produce, but they must be thorough.  The best business succession plans are those that establish some transition measure prior to the owner’s death OR provide for the taxes and other expenditures that will arise.

I work with families to put together and file the appropriate legal documents required to ensure the legality of the business success plan.  I do recommend that businesses work with financial consultants to ensure that the appropriate funds and management support are available to make the plan a reality.

Next month I will post a Business Succession Planning eGuide that should clarify the content of this very important blog series in more detail.

Related articles

• Business Succession Planning Part I: Vital for Unique Familes (uniqueestatelaw.com)

Immigrating to the US --Image by jonathan mcintosh

I don’t usually cover purely political stories on my Unique Estate Law blog, but stories like these are hitting the news far too often to ignore.  Today, I’d like to blog about gay marriage and immigration.

In four days, Violeta and Sujey Pando will see their Iowa marriage disintegrate as Sujey is deported by US immigration officials back to Mexico.  Even though they were married in a state that considers gay marriage legal because of DOMA, a federal marriage act, their marriage does not carry any weight at a national/international level.  Had this been a straight couple, as opposed to a unique family, Sujey would still continue to live in the United States as a married, permanent resident.  There have been other cases much like theirs, (one even successfully stalled!!) wherein married couples are asked to separate by US immigration because their marriage was recognized at a state level only.  Stop the Deportations covers these cases very thoroughly, in case you desire more information or want to make a donation to their case.

When I first came out, so to speak, against state marriage I had a lot of people tell me that I  should lighten up and not think like a lawyer (even from other lawyers).  However, when I read the news it’s very hard to be all that excited about it.  The potential loss of domestic partnership benefits, the Byzantine tax laws that will have to be navigated, the fact that I still would have to establish all of the same unique family/non-traditional family documents for business succession planning, estate rollover, and potentially (if married to a foreign national) lose my wife to immigration laws doesn’t exactly make state marriage feel like a real marriage to me.

As long as DOMA is in effect, as long as there is no federally recognized gay marriage in the United States unique families face will continue to have “second class” marriages even if those marriages are recognized by the states.  I urge anyone who cares about this issue to push for a repeal of DOMA and I also urge non-traditional families to take precautionary, legal, financial measure to protect their partners and family regardless of whether their marriage is recognized by the state they reside in.

Related articles

• What Does Gay Marriage Mean for Domestic Partnership Benefits? (uniqueestatelaw.com)

Image by Thomas Hawk via Flickr

If you’re like most people, it’s not that you don’t appreciate the value of life insurance. In fact, most everybody I come across believes they need more coverage. You probably wouldn’t mind owning additional life insurance. It’s just that you don’t want to buy, the thought of paying for it literally immobilizes you from inquiring about it.

Thinking, talking, listening, and reviewing whether to buy life insurance makes many people feel uncomfortable. Below are many of the reasons why you might be putting off buying life insurance you need and eventually come to want.

I was told life insurance was only for married couples with young children

Life Insurance is owned by all people of all ages (0-100), married couples and non-married partners, business partners, and the like. Although each situation is unique, they all share in common a need and desire to own life insurance.

I don’t have enough time

You’ll get around to buying life insurance, just not today. You have a lot of things to do before you can get to it; buying life insurance often becomes relegated to a low priority—just another thing you ought to do. Not to mention, the whole idea of discussing life insurance isn’t a whole lot of fun. Who wouldn’t rather go on a bike ride, go shopping, and chat with a close friend?

Nonetheless, buying life insurance is really an important task that should be addressed. Life insurance can help ensure that your family or partner will have enough money to meet their financial obligations in the event of your death.

The subject scares me

If you really don’t like to think about death, you’re not alone. Death is an unpleasant subject, and life insurance raises issues of our own mortality.

It doesn’t have to be that way. People who do act on their life insurance needs tend to focus on the positive aspects: meeting their responsibilities and understanding their big picture planning. They also recognize that life insurance is for the living, it’s a love product.

I wouldn’t know where to begin

I don’t have a clue about what type of policy, how much life insurance I need, etc. Actually, few understand life insurance: why we need it, how much, what type of policy is best for your situation, how benefits are paid, how it should be coordinated with all your other assets, how and when it’s paid, tax questions, etc.

That’s okay. It’s not your job to understand everything about life insurance, that’s the job of an insurance and planning professional to be able to show you what you need and want and how it fits into your budget.

Bottom Line

It’s easy to understand why people tend to put off purchasing the life insurance they know they need. Take the first step and make it a priority to look into it, find an experienced professional to meet with that is willing to have an open-ended discussion, and make that appointment. What could be better knowing you have peace of mind that your loved ones are protected, even if you’re no longer around to provide and for them.

Related articles

• Financial Friday: The Different Types of Life Insurance (uniqueestatelaw.com)
• Life insurance: a vehicle to address special concerns of unmarried couples and the unique family. (uniqueestatelaw.com)
• Financial Friday: Protect Your Loved Ones With Life Insurance (uniqueestatelaw.com)
• Financial Friday: Both Permanent life Insurance and Invested Assets are the Pillars of Financial Stability and Wealth Building (uniqueestatelaw.com)