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Zupanc Law Offices |
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Frequently Asked Questions |
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This is a sample of a few of the frequently asked questions clients have posed. Click on the question to find the answer. If you would like further information or have a general legal question please drop me an email or give me a call at 1-800-867-7576 (Minnesota only) or (320) 263-8400Lawyers cost too much; can I do it myself? I trust him - we don't have to write it up? Small Claims Court is a waste of my time. You never get paid even if you win? Is there an another option than going to court? I do not have time to deal with complications like Wills and Trusts and such? Should I have a Will, or a Trust? How can my family avoid probate? I've named a guardian for my children in my Will, but who will take care of them if I am disabled? How can I keep the nursing home from getting my parents' assets? We know we are going to be divorced. How can we do it without fighting over everything? At what age can my children decide which parent they want to live with? I remarried. How can I provide for my new spouse after I die without disinheriting my children?
Lawyers cost too much; can I do it myself? That is what the ex-Chief Justice of the Supreme Court must have been thinking. The Will he drafted cost his estate approximately $450,000 in taxes and it created delays. Even though his estate was worth 1.8 million dollars, it is highly likely he could have passed even that large an amount to his heirs without taxes. The lawyer's fees to that would have been minimal compared to the tax savings. Back to Top of Page
I trust him - we don't have to write it up? Some things can be based on trust and some things have to be in writing. All transactions dealing with real estate have to be in writing to be enforceable. It is not necessarily a matter of trust or honesty - it is because of the complications that real estate transactions always have. A written agreement can deal with that much better than an oral one. Besides, what happens if the other guy dies or becomes disabled or misunderstood you in the first place? Do both yourselves a favor. Get it in writing. Back to Top of Page
Small Claims Court is a waste of my time. You never get paid even if you win? Small Claims Court (for some odd reason called "Conciliation Court" in Minnesota) can only get you a judgement up to $7,500 or a judgement for the return of property. It does not give you cash or property unless you have a cooperative Defendant. Sometimes you have to resort to collection agencies or attorneys. Attorneys can levy on (get part of) wages and bank accounts. Prevention of disputes is the key. When you enter into a financial or business relationship, you would be surprised how easy and inexpensive it is to be precautionary, and if things don’t go as planned you will be thankful you did. Back to Top of Page
Is there an another option than going to court? Yes, as a qualified arbitrator, I make decisions for parties who submit their disagreements to me. Arbitration can be binding (no appeal) or non-binding (advisory). The rules of evidence and procedure are relaxed, and it is typically cheaper and quicker than a trial. Back to Top of Page
I do not have time to deal with complications like Wills and Trusts and such? Contrary to popular belief, all Minnesota laws and even the tax code are written in English. Besides, once begun, half done. Are you over age 65? Do you own real estate outside the State of Minnesota? Have you been diagnosed with a debilitating condition? Does the value of your assets (including life insurance) approach $600,000? How well does your family get along? Are you concerned about privacy of your assets or beneficiaries? Are you assets in a few accounts or are they scattered in all sorts of investments? Believe it or not, by answering these questions have already started the process of planning. Back to Top of Page
Should I have a Will, or a Trust? Maybe both. Maybe neither. Each one has its place in modern estate planning. It depends on your situation, and on what you want to accomplish. I pride myself on listening to my clients. After 13 years, I know the questions to ask and I know when to shut up and listen. Back to Top of Page
Life Insurance policies, IRA's, Pensions, Keogh Plans, Profit Sharing, Pay on Death Accounts, Transfer of Death Accounts, Annuities, Life Estate, and Trusts are some ways that property can be transferred after you death without having to go through probate. Each alternative has its own advantages and disadvantages. Each one also has its own income and estate tax consequence3s. It is not that difficult to understand the differences among these alternatives if you seek advise from a competent, experienced source of information. Back to Top of Page
How can my family avoid probate? Sometimes Trusts can do the trick, although that may be more expensive in the long run than a Will or other devices. The first question is not which tool to use, but what you want to accomplish. What is it about probate you want to avoid? Cost? Delay? The fact that it is a public record? I have a list of questions for you and I listed to the answers. Then, and only then, can I advise you about the advantages and disadvantages of each tool available to you. Back to Top of Page
Life any other legal tool, trusts have advantages and disadvantages. Its advantages include management during disability or after death, private means of distributing assets, fewer delays than probate, and avoiding probate in other states where real estate is located. Its disadvantage includes more expense drafting and funding the trust, than creating a will, loss of some income tax advantages, financing property, creditors claims period is greater than in probate, and formalities of operating the trust. Back to Top of Page
I've named a guardian for my children in my Will, but who will take care of them if I am disabled? If you are the custodial parent, a Designated Parent Agreement can be used to name a person to provide care for your children if you are unable too. The Designated Parent has authority up to one year, and can make decisions about education, health care, religion, daycare and other care as you direct. The Designated Parent cannot consent to marriage or adoption of the children. There are other limitations and provisions, but it is usually preferable to a formal guardianship over the child, and it lasts longer than a Power of Attorney to Appoint a Guardian. Back to Top of Page
My mother died and has a bank account in her name. Really no other assets or property. Do I have to go through probate? If the entire value of the person's probate estate is $20,000 or less, there is a special form, which can be used to collect and then distribute these assets without using the probate court. There are some exceptions (no real estate can be distributed way) and some conditions (30 days since death, no probate proceeding has started, the person is entitled to payment, and other conditions) but it is still handy, inexpensive and quick for many situations. Back to Top of Page
How can I keep the nursing home from getting my parents' assets? Sometimes you can't, and it is not always the nursing home who gets those assets . . . it is the State, which administers the Federal Medical Assistance (MA or Medicaid, not Medicare) program though its Counties. It is a little complicated, as you can see. Put very simply, your parent has to pay the nursing home for his or her care. If you parent wants Medical Assistance (MA) to pay for that care, you parent will not get it unless he or she has fewer assets than the MA regulations allow. Those regulations allow very little, so that only the needful can tap into MA. The regulations do not allow your parent to give it all away before applying for MA, either. Back to Top of Page
We know we are going to be divorced. How can we do it without fighting over everything? It takes two to cooperate. In many cases, couples who have a general agreement can put it into effect by an attorney hired by one of them. In cases where there are disagreements, even about custody, mediation can help the two toward an agreement. It's typically cheaper that each side hiring an attorney, and emotionally it works better. However, each person must be willing to discuss and listen to the other person. Back to Top of Page
At what age can my children decide which parent they want to live with? Age 18, when they are legally adults. In divorce or separation situation, children do not have a legally enforceable right to decide who they want to live with. They have the right to tell the Judge what they want, but the Judge ultimately decides. Many times it is difficult for a Judge to go against the child's preference if it is not in the child's best interest under all the circumstances of the case. No matter what the situation, keep the children from being in the middle. Don't have them relay messages to the other parent. Don't badmouth the other parent in front of the children. Don't use visitation or child support as weapons against the other parent. Back to Top of Page
I remarried. How can I provide for my new spouse after I die without disinheriting my children? It is very common for people to place their assets in both spouses' names, and to have a will that says, "If I die, everything goes to my spouse." These common traps can disinherit children who are from a previous union. One simple solution may be to have those children as beneficiaries of all or a portion of life insurance, annuities, bank accounts or stock accounts. A more complicated (but more precise) solution may be to fund a trust for those children. Back to Top of Page© 1997 and 1998 by Thomas A. Zupanc |