Posts Tagged ‘attorney’

Why did you put Latin in my Will and Trust?

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The legal phrases: “by representation”, “per stirpes”, “per capita”, “per capita at each generation” and “survivorship” are found in both wills and trusts. While they may appear to be gibberish, the phrases have meaning in the probate and trust world.  They each provide for a distinct rule used to distribute assets after a person dies.

It is very easy to become confused when one comes across this kind of mumbo jumbo. The phrases are a far cry from plain English. They are definitely “old-school”.  The reason for using this old-school terminology is history. The phrases are based on old English law which was developed centuries ago and then handed down through the ages.

As one would suspect, each legal phrase produces a different result when used to determine the people receiving your assets when you die. “By representation”, “per stirpes” and “per capita” are there to help determine how assets flow to your descendants. “Survivorship” is a short stop/ everything to the one in a named group who survives the decedent. I like to call that the “king of the raft” approach. This was game I played in my youth where we tried to be the last one standing on a raft in the lake.

This  photo  shows three simplified examples that compare three commonly seen approaches (Per stirpes, Per Capita, and Survivorship):

The “per stirpes” model is by far the most popular choice for the clients in our practice. The families we deal with seem to like the branch approach to distribution, where a child’s share works its way down to survivors that are the heirs of that child if he or she dies before they do. “Per capita” is less popular, but can be used if the grandchildren are thought to be on par with the surviving children. The “survivorship” model is used most often with older clients who have already spent down a great deal of their assets and want to leave smaller amounts to the surviving children immediately below them rather than spread the minimal assets among an extensive family tree of heirs.

The State of Wisconsin has a statute that covers this topic too. Wisconsin Statue Section 854.04: “Representation; per stirpes; modified per stirpes; per capita at each generation; per capita”, does a nice job of explaining the differences as well. It goes as far as to delineate between a per stirpes and a modified per stirpes approach. It also equates the phrase “by representation” to “per stirpes”. Finally, it also lays out “Per capita at each generation” and “Per capita”. Section 854.04, in its final paragraph, says: If the transfer is made under a governing instrument (Will or trust, normally) and the person who executed the governing instrument had an intent contrary to any provision in this section, then that provision is not applicable to the transfer. In short, your will or trust can override the statute. This is often the way to go. A will or trust can be drafted to modify the general rule so that the distribution plan can be modified to fit your family’s unique circumstances.

Use care to consider what happens when the beneficiary dies before the person whose estate is being divided. Most folks want the children of the predeceased beneficiary to take the share which their parent would have taken had he or she survived the decedent. If the plan for distribution isn’t spelled out that way, the assets could be divided equally among the surviving heirs and the children of a deceased heir might not receive the deceased heir’s share.

Be sure to get solid advice on this and other important planning topics from a qualified expert. Do not hesitate to ask about the options available to you when you do sit down to plan your estate.  That way you can be sure that your hard-earned assets will go to your loved ones in the way that you intend.

Get Paid to Delay Your Divorce a Little Longer

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There’s never a great time to get divorced, but there are a few times that are particularly not great. One is right before your tenth anniversary.

The reason? Social Security benefits. Social Security’s rules entitle you to your ex-spouse’s benefits if you were married more than 10 years. Collecting on your ex’s benefits doesn’t affect their (or their new spouse’s) ability to collect benefits, so tagging along shouldn’t create any bad blood. And while there are a few other requirements before you collect on your ex’s benefits–you need to be at least 62, unmarried, and the benefits need to be more than you would have received based on your own work–it usually makes sense to delay finalizing a divorce a few months to leave this door open.

So if you’ve been married for nine years or so and don’t think you can stand another day with your spouse–think again, particularly if they’ve made more money than you. It might be worth it in the long run.


Be Careful with Your Website Pictures

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A few clients over the years have received nasty letters from trolls law firms claiming that the pictures on my clients’ websites infringe on their client’s intellectual property rights. Along with the letter comes an offer to settle the case, typically for a few thousand dollars.

I usually have to give the client the bad news: that picture you took off the internet is someone else’s property, they do have a claim (albeit a small one) against you, and you are better off paying a couple thousand bucks now rather than pay me at least that much to fight it when you’ll probably lose anyway.

Although my clients have been out some money, at least I would personally never make that mistake having seen what they went through. Oh no, no, no, I would never be stupid enough to make that same mistake. And certainly never on this blog!

Did I make that mistake on this blog? Of course!

But, I got tripped up in an unexpected way. I knew I couldn’t just take any picture off the internet, so I used a tool in google’s image search that allows you to sort images by their “usage rights.” I picked the one that said “labeled for reuse” and figured I was home clear. The troll photographer, however, had attached terms that could only be viewed if I went to the picture’s original web page, specifically that someone could use the image for free but had to credit the photographer. I didn’t credit the photograph and after receiving a letter from his legal troll lawyer, I’m a little lighter in the wallet.

I’m using pictures of my cats from here on out.