More often than not, estate planning clients call or stop in and say that they would like to have a will drafted so that they can avoid probate. This leads to a conversation about how a will does nothing to avoid probate and in fact is basically a letter to the court explaining how you would like your estate handled. There are many reasons why individuals want to avoid probate, but the three most common reasons we hear are privacy, time, and cost. For those that don't know, probate is the court process necessary for settling most estates. The information is public and the process can take anywhere from 6-18 months, which also costs money.
One way to avoid probate would be to never acquire any real estate or personal property. This strategy has some obvious downfalls . . . like not having stuff. For those of you that like "stuff," don't worry, there are other options. For some, a combination of a will, transfer on death deeds, payable on death accounts, joint tenancy, and beneficiary designations can successfully avoid probate and accomplish their goals. For others, a will based plan will not work, often due to family dynamics or other complexities and goals.
The most common option to avoid probate is to utilize a revocable trust based estate plan where a trust is created naming yourself as the trustee and all of your assets would be retitled in the name of the trust. The trust documents would also name beneficiaries and give directions as to how your estate should be distributed at the time of your death. Your named successor trustee would immediately be able to follow the instructions you provided and no court involvement should be necessary, saving your beneficiaries time and money. It is also important to note that even though your assets are transferred into the trust, you still have full control of them as trustee and generally speaking, your life isn't any different.
Who should have a revocable trust plan? There seems to be a misconception that revocable trusts are only for the rich. It is true that revocable trusts are more common with larger estates, but that doesn't mean that smaller estates can't benefit from them as well. Individuals that want privacy along with a timely distribution of their estate should seriously consider this type of plan. They can also be very beneficial to small business owners and farmers for a variety of reasons. The main downfall of a revocable trust plan is the initial costs. While will based plans can run from $200 - $600, a revocable trust plan typically starts at $1,200 because of added time, documents, and recording fees necessary to transfer ownership to the trust. Although it may cost more to set up, most clients see the benefit of substantial savings in the administration of their estate once they have passed.
Revocable trusts are a great option in estate planning, but they don't always make sense for everybody. Instead of going with a one-size fits all approach, when clients ask me what they need for an estate plan, I like to figure out what type of plan best fits their wishes and go from there. In order to craft the best personalized estate plan, we need to understand your goals first so that we can develop a strategy for helping you achieve them. Feel free to call us at (320) 243-3748 to discuss your goals.
When an unmarried couple has a child in Minnesota, the parents typically sign a document called a Recognition of Parentage while they are at the hospital. Although both parties sign it, the purpose is to acknowledge who the father of the child is without having to pursue other routes such as appearing on an episode of Maury Povich. All kidding aside, this is an important document that for a variety of reasons can also leave people with a false sense of security. Even when there is an executed Recognition of Parentage, a father still has no legal right to custody or parenting time. This is because Minnesota law states that an unmarried mother has sole custody until a court grants a permanent or temporary custody order in favor of another. This information is provided to the couple when they sign, but I have a feeling that it is often overlooked as they are caught up in the life-changing moment.
In a common scenario, an unmarried couple may have a child and live together for two years until the relationship goes south and they breakup without ever getting married. At this point, the mother can leave with the child and the father has no way to enforce any parenting time until a court order is granted. The father will need to petition the court for custody or parenting time, which can take months. If all contact is being denied, that time apart can be devastating to both the father and child. I'd like to believe that the parents in this situation can cooperate for the benefit of the child and work out a parenting schedule, but that isn't always the case.
The good news is that there are steps to take to avoid this outcome. If you and your significant other have children but aren't married, you can and should get a custody order now instead of waiting until things go bad. Hopefully things never go bad, but fathers need to protect themselves so that they have an enforceable means to see their kids. It may seem bizarre to ask the court and your girlfriend for a joint custody award while you are living together, but it is a smart, proactive measure that I highly recommend.
Obviously not all unmarried parents live together or consider themselves a couple. They may cooperate with a makeshift parenting schedule and there may even be a child support order in place as well, but this still does not mean that the father has any custody or parenting time rights. Once again the only way to establish this is to petition the court for an order. Depending on the relationship of the parents, this process can be adversarial or cooperative, but either way, it needs to be done. If you are an unmarried parent concerned about your rights, feel free to give us a call at (320) 243-3748.
Much like a Power of Attorney, a Health Care Directive is an important document in our estate planning packages that allows you to provide guidance in the event that you are still living, but unable to speak for yourself. A Power of Attorney allows you to appoint someone to handle your property and finances, while a Health Care Directive allows you to appoint someone to make medical decisions on your behalf and/or provide specific health care instructions. I explained the Power of Attorney in my last blog post, so today I wanted to describe what a Health Care Directive is and why everyone should have one as part of their estate plan.
Prior to 1989, Minnesota lacked any statutory provisions relating to health care incapacity planning. In other words, even if you provided medical instructions to your family, there was no way to guarantee that they would be followed. In 1989, the legislature passed a statute allowing a Living Will and then permitted the use of a Durable Power of Attorney for Health Care in 1993. I still hear clients use both of these terms which can cause some confusion. Since both documents had some limitations, clients would often have to have both. Finally, in 1998, Minnesota began allowing Health Care Directives as a means for a person to provide specific health care instructions, and/or appoint a Health Care Agent to make health care decisions for them.
Health Care Directives can be as specific or as vague as an individual wants them to be, as long they appoint an agent or provide some instructions. Some clients simply want to appoint their spouse or adult child as their Health Care Agent and not provide any specific instructions. This is completely fine and legally sufficient, but I like to advise clients to try to at least include some basic instructions such as when to "pull the plug," burial vs. cremation, and organ donation. Even though you may have told your spouse/agent about these wishes, having them documented in your Health Care Directive makes those decisions easier on them and provides proof to other family members affected by these difficult circumstances. The last thing you want is for your unfortunate health crisis to cause an even greater, and completely unnecessary, family crisis.
In the event that you become incapacitated and medical decisions need to be made, your family will be grateful that you gave them guidance so that they didn't have to guess what your wishes would have been. Whether you need a total estate planning package or just a Health Care Directive to supplement an existing plan, give us a call at (320) 243-3748 today!
Included in all of my estate planning packages, you will find a power of attorney. This is an essential piece of an estate plan which should not be overlooked because planning for incompetence or incapacitation is just as important as planning for what should happen when you are gone. The name suggests that it has something to do with super powers that can only be acquired by passing the bar exam. Unfortunately, it's not that cool, but still very powerful.
In Minnesota, when an individual executes a power of attorney, they are appointing someone to handle their property or finances. The person creating the power of attorney is called the "principal" and the appointee is called the "attorney-in-fact." A principal can select multiple attorneys-in-fact who may act individually or require them to act jointly. You also have the ability to name successors, in case something should happen to your original attorney-in-fact. The power can also be as broad or as limited as the principal wants, but it is only valid while the principal is alive.
A power of attorney is generally used to plan for the unfortunate circumstances which may leave a person incapacitated or incompetent. In fact, some clients choose to limit their power of attorney so that it is only becomes effective under those specific circumstances. Having this document as part of your plan will ensure that the person you name will be able to manage not only your finances and property, but insurance, business operations, litigation, employee/military benefits, gifts and maintenance as well. Most importantly, naming an attorney-in-fact avoids the costs, delay, and embarrassment of having to initiate guardianship and conservatorship proceedings in court.
Given the power of this document, it is very important that you only name an attorney-in-fact that you can completely trust, most commonly a spouse or adult child. There are some statutory safeguards in place including the requirement that they act with the interests of the principal in mind and they can be held liable both civilly and criminally, but it is always better to be proactive and choose the person wisely since they will ultimately be able to sign for you.
Whether you need an entire estate planning package or already have a will or trust plan that doesn't include a power of attorney, we're here to guide you through the process and answer any questions you may have.
Mediation is a form of alternative dispute resolution (ADR) that can be either voluntary or court ordered, however, the process is generally the same. Mediation is conducted by a neutral party called a mediator, who facilitates communication between the disputing parties in an effort to voluntarily resolve the conflict through a mutual agreement. Parties may be hesitant to participate, but as an attorney and a mediator, I have personally witnessed how family mediation sessions can be satisfying and beneficial to all parties involved.
In Minnesota, a typical family mediation involves a husband and wife going through a divorce who are struggling to agree to the terms of their property settlement as well as the custody and parenting time of their children. If the dispute cannot be settled voluntarily, a judge, who knows nothing about the parties, will settle it for them. Although outcomes may vary, people are generally more satisfied with and more likely to follow settlements that they voluntarily agreed to compared to court orders that are forced upon them. This is why, regardless of my role in the process, I always suggest resolving the dispute on their own terms as long as the other spouse isn't being completely unreasonable.
I recently conducted a mediation in which the soon to be ex-spouses seemed to be miles apart. At one point I thought settlement was going to be impossible and we were going to have to end the session. However, by the end of the day, we had a signed agreement which both parties and their attorneys appeared to be happy with and I left feeling good about the fact that I was able to help them all communicate and cooperate.
Family mediation can be conducted with or without attorneys representing the clients, but it is always recommended that the parties consult with their own attorney before signing any mediated agreement which will certainly have legal ramifications. Whether you need a family law attorney to represent you or a family mediator to conduct a voluntary or court ordered mediation, I'm here to help.
In 2005, Minnesota launched its first DWI Court program with the goal of reducing repeat drunk driving offenders. Ten years later, the program has been expanded to thirteen counties with Norman, Polk, and Red Lake counties being added to the list of programs in 2015. This program is intended to address the real issue in repeat offender DWIs, which is alcohol and other drug problems, instead of simply putting the offender behind bars. Typically a person who qualifies for the program needs to participate for at least a year and is closely monitored through frequent court appearances, alcohol treatment, communication with probation officer, as well as drug and alcohol testing.
In 2011, the State of Minnesota Department of Public Safety contacted a Portland, Oregon company, NPC Research to conduct an assessment of the nine existing DWI courts. The firm was paid about $500,000 for the study, which was covered by federal funds. The study concluded that the program saved the taxpayers $700,000 per year, so as long as we don't conduct any more half million dollar studies, we should continue to save a lot of money. Beyond the money savings, the study also concluded that the program was successful at reaching its ultimate goal of reducing the rate of repeat DWI offenders, especially graduates of the programs.
DWI offenses are one of the most commonly committed and potentially deadly crimes in Minnesota. Hopefully we will see an expansion of these programs in the future, much like the roughly 37 Drug Courts across the state. Repeat drug and alcohol offenses are most often the result of a much deeper addiction problem that are not solved by the traditional criminal justice approach of fines and incarceration. As a result, successful Minnesota Court programs like these should be available to everyone throughout the state, and not just those that live in the counties that are fortunate enough to have them.
Due to hunting season, holidays, kids, and work, I realized that I have gotten a little behind on our blog lately. There have been a lot of interesting legal headlines in the last couple months, but many of the issues were so controversial and divided that I saw no value in commenting on them. Last week it came to my attention that a woman in Lac Qui Parle County was facing two gross misdemeanor charges of endangering her child stemming from her decision to give him cannabis oil in an effort to treat his symptoms from a traumatic brain injury. This is a case that I have to comment on. This case shouldn't be in the news for one simple reason; the prosecutor should have exercised discretion and not charged this compassionate mother with a crime.
The details of this case have been widely reported, but essentially, Ms. Brown legally purchased cannabis oil in Colorado to give to her son who was experiencing horrific side effects from a traumatic brain injury. No other medications worked, but cannabis oil, which will be legal in Minnesota next July, dramatically improved his quality of life. Now, because she made the decision to help her son, the prosecutor decided to pursue criminal charges and she faces up to a year in prison and a $3,000 fine on each charge, which is why this post is titled, "Dude . . . Where's Your Discretion?"
Prosecutors are given the power to decide whether or not to pursue charges in every case. This is a lot of power, which can and should be used to filter out bad cases such as this, since they are huge wastes of government resources. Will justice be served if this mother gets punished? Will the public be safer? Will this be a victory in the epic failure that is the "War on Drugs?" Will her son be protected or helped? The answer to all of these questions is "no."
The judge in this case could have a difficult time dismissing the case because technically, Ms. Brown did possess a controlled substance (cannabis oil) in the presence of her minor son, an act which was technically illegal. Although I would argue that since clear intent of the statute is to protect children from harm, it shouldn't apply under the circumstances. Regardless, the prosecutor could easily drop the charges and put public funds to a better use. If for some reason this case actually goes to trial, I would assume that this would be a situation in which the jury would simply nullify the charges. Jury nullification occurs when a jury may acknowledge that the defendant committed the offense, but since they disagree with the law, they decide not to punish the accused.
This will be an interesting case to follow, but hopefully it gets resolved quickly when the county comes to their senses. Clearly this isn't a case of child endangerment. Instead, this is a parent doing everything they can to help their suffering child, and as a result, Ms. Brown should be admired, not punished.
Although every estate plan is unique, most plans generally share some common goals and core documents that help to achieve those goals. Clients typically want to provide for their children and spouse, specify who gets what if they pass away, provide directions for their own care, and save their families from having to deal with the resulting mess of not having a plan. Others want to avoid probate and are concerned with reducing any estate taxes that may be owed. In order to accomplish these goals, we use a combination of a will, a health care directive, durable power of attorney, and various trusts in nearly every estate plan.
The document that is the cornerstone of many estate plans, which most people are reasonably familiar with, is a will. A will, which takes effect after death, should distribute assets and appoint personal representative or executor of the estate. When minor children are involved, a will should appoint a guardian and can also create a minor beneficiary trust so that children don't inherit everything at 18, when they are likely too immature to handle managing a large sum of money.
There are too many types of trusts for me to get into much detail in a single blog post, but it should be noted that they are a very valuable estate planning tool. As mentioned above, there are testamentary trusts created by a will, but there are also many other trusts which are created separate from the will. One of the most common types of trust is the revocable trust, which is also called a living trust. When probate avoidance and privacy are major goals of a client, revocable trusts are used as the main estate planning tool instead of a will based plan. A will is still needed with a revocable trust plan, just not as the main document.
The final two tools we recommend including in every estate plan is a health care directive and a durable power of attorney. A health care directive allows you to appoint a health care agent to make decisions regarding your care and can also provide valuable insight into what you would want done if you were able to speak for yourself. This document can be very helpful to your family if you become incapacitated. A durable power of attorney is analogous to a permission slip, entitling a trusted family member, friend, or advisor to sign/act on your behalf in a variety of financial and legal matters. This "permission" expires when you do, but is a good tool to have when an emergency situation arises and you are unable to handle the matter yourself because of disability, incompetence, incapacitation, or just being out of the country.
Now that I've discussed these estate planning goals and tools, I've realized that I will probably have to expand on most of this in future blogs to provide the detail that it deserves. In the meantime, you can always give Bill or I a call, and we will be happy to answer any of your questions. Take care, and enjoy the weather while you can!
Both football fans and non-football fans have probably heard about or seen the TMZ video of Ray Rice, the now former NFL running back, knocking out his then girlfriend, and now wife, Janay Palmer, on an elevator. Both Ray and Janay were originally charged following the incident, however, the charges against Janay were subsequently dropped. Ray was charged with third degree aggravated assault, but was able to enter a pre-trial intervention program which allowed for the charges to be dismissed against him. Given that law enforcement and prosecutors had access to this video, I am shocked that Mr. Rice was able to move on without any criminal record. The word corruption comes to mind.
The elevator video is very disturbing, but what is more disturbing is how commonly domestic abusers get off with a slap on the wrist throughout our country. All too often a domestic abuse victim refuses to testify against their abuser, which results in charges being dropped since the prosecutor is left without a witness or enough evidence to get a conviction. Unlike the Ray Rice incident, rarely are these things caught on video. When I worked in a public defender's office, and also as a judicial clerk, I saw way too many charges get dropped because prosecutors struggled to get helpful testimony from scared or uncooperative victims. This was very sad to see, but the victims' reasons for refusing to testify are complicated, emotional, confusing, and beyond the scope of this blog post. I remember one case where the abuser had been charged on nine separate occasions, but the victim (who was the same in all cases) always changed her story or refused to testify, which resulted in either lessor charges or dismissal. On occasion, I still find myself thinking about her and hoping that she has safely moved on from that abuser.
Hopefully this incident will make people more aware of the domestic violence problem that we have in our culture. It is obviously not a problem that is easily solved, but victims need to know that there is help out there for them. I can only hope that more victims will be able to remain strong and stand up to their abusers so that they get the punishment that they deserve. More importantly, prosecutors need to do their job when they have the evidence needed to convict.
As an attorney, I have friends joke about whether or not I'm charging them for a phone call, text message, or email anytime they ask me a legal question. Of course, they aren't getting charged so I give my standard fake chuckle in return and they believe that they just made a great lawyer joke. Seriously though, many potential clients likely have questions as to whether or not they will be charged for talking to Bill or myself, so I thought I would try to provide some clarification.
Generally speaking, lawyers get paid for their advice or expertise. In other words, the commodity that we sell is brainpower. If we constantly met with people and gave out our legal advice for free, our business wouldn't survive. That being said, there are often situations in which charging a potential client for a quick meeting wouldn't make sense either. For example, if you have a personal injury case and want to know whether or not you have a valid claim, you will not be charged to consult with us. In fact, those cases are what we call "contingent fee" cases, essentially meaning that you won't be charged until we recover a settlement or jury award for you. Another example would be if you were served with a lawsuit or possibly charged with a crime and were deciding whether or not you need to hire an attorney. In those cases, we are always willing to meet with potential clients to discuss their initial options without sending them a bill.
My main concern is that people delay talking to an attorney when a legal matter arises out of a fear of being charged for asking a question. As a result of this delay, important deadlines may pass and the problems may worsen. Don't hesitate to call our office if you find yourself in need of professional legal advice, most often we will offer to meet with you for a free initial consultation or answer your question quickly over the phone. If you decide to hire us for our services, at that point we will make it very clear what you will be charged for moving forward.