Month: July 2019

7 Steps to Navigating Probate

Have you ever been asked to be the Personal Representative (commonly known as an Executor) of someone’s estate after death? It’s not an easy role and often brings complicated feelings. Many people view it as an honor. It can be comforting to know that you were respected and trusted by the deceased. However, it can also stir up feelings of sadness and grief.

While it may be difficult, it’s important to focus on the job duties and try not to let strong emotions distract you from the work that needs to be done. Probate is a complex, legal process. Many Personal Representatives are surprised by the amount of time it takes and all the different responsibilities involved. Many Personal Representatives report feeling overwhelmed. The seven steps below will help provide some background on what you can expect during the probate process.

Step 1 – Before accepting the role of Personal Representative, you need to ask yourself the following:
  • Am I comfortable being the person responsible for financial record-keeping?

The Personal Representative is responsible for managing the finances of the estate. Personal Representatives are held responsible for any misconduct.

  • Am I willing to manage and deal with the reactions of family and loved ones?

A Personal Representative’s Family relationships often take a hit and because of all the work involved, Personal Representatives are often the last to grieve.

  • Am I willing to put in the time necessary?

In Wisconsin, the probate process can last as long as 6- 18 months so it can be a huge time commitment.

If you can answer yes to the above questions, proceed to Step 2. If not, then you can (and probably should) decline the role.

Step 2 – File a request to begin probate.

Once you decide you will accept the role, if you haven’t already, you’ll want to contact an attorney with extensive probate experience to help guide you through the process. First you will have to file the necessary paperwork with the probate court in the county where the deceased was living at the time of death. You will have to file the original will (if there is one). The Court will determine whether you are  approved as Personal Representative of the estate and the probate case is officially opened.

Step 3 – Notify all creditors, beneficiaries and heirs that the estate is in probate.

The probate process must allow time for creditors to be notified, The Personal Representative is required to post a notice in the newspaper alerting any creditors of the deceased and setting a date for claims to be filed with the court.  In Wisconsin, creditors are prohibited from filing a claim against the estate after the claim period has ended.

Step 4 – Freeze and calculate the assets.

As the Personal Representative, you’ll want to make sure that personal tangible items stay on the property. It is probably also a good idea to change the locks once you are appointed by the court.  In addition, you will need to account for all of the assets of the estate such as:

  • Bank and retirement accounts
  • Stocks and bonds
  • Real estate
  • Life insurance
  • Titles to cars, boats, RVs and other vehicles
  • Personal effects such as jewelry, art and coin collections.
Step 5 –Determine liabilities and settle the debts of the estate.

Personal Representatives are responsible for making sure all required taxes are paid. A final income tax return will need to be filed with both state and federal. Also, the estate may have to file its own tax returns if the assets of the estate or income in the estate are over certain limits.  You also might have to do a little investigating to determine what bills and debts exist. In addition to taxes, common final debts include:

  • Hospital and doctor bills
  • Insurance premiums
  • Credit card statements
  • Mortgages
  • Property taxes
  • Funeral costs
  • CPA fees
  • Probate fees
  • Personal, student or other loans
  • Phone and/or utility bills
Step 6 – Once debts are paid, distribute the remaining assets

When in probate, you must adhere to a specific process for distributing assets to beneficiaries. Personal Representatives will need to list each beneficiary and record the main assets each will receive. The process can be complicated by emotions and in-fighting among relatives. It is not uncommon to hire a mediator to help keep the family intact.

Step 7 – Close the estate

After all the assets have been distributed, you’ll submit the receipts and records to the court. The Personal Representative is responsible for filing the accounting report. Probate won’t close until every penny has been accounted for. If there is a discrepancy with your final accounting filing, it will be rejected, and the probate process will remain open.

Many Personal Representatives feel overwhelmed when going through probate. But, with the right attorney at your side, the process is manageable. They will analyze tax and financial matters, help with distribution of assets and make sure all necessary papers are filed with the probate court. Plus, they can help you manage family expectations in a personable and effective manner.

 

If you are going through probate, or expect you might be in the future, let us help. 

 

About the Author 

Patrick Furman, Estate Planning and Probate Attorney

Patrick Furman is an attorney with Epiphany Law and has been practicing Law for over 15 years. He focuses his practice on all aspects of estate, succession and tax planning as well as probate avoidance, irrevocable and revocable trusts, life insurance spendthrift and special needs trusts along with wills durable power of attorney and advanced health directives.

 

 

Epiphany Law Business Litigation

5 Tips to Avoid Business Litigation

In business, lawsuits aren’t uncommon. Many successful executives and business owners will face a lawsuit at some point in their careers.  While you may not always be able to avoid litigation, there are steps you can (and should) take to best protect your interests when disputes arise.

1 – Improving Communication is Key to Avoiding Business Litigation 

If you want to avoid disputes with clients, employees and competitors, good communication is essential. You should always take time to clarify expectations and make a habit of doing the following.

  • Never over promise.
  • Keep the promises that you make. However, if you cannot keep your promise for some reason, let the person know. Offer a plan on how you will resolve the issue and make it right. Call first and then be sure to follow up with an email detailing whatever agreement was reached.
  • Be proactive. Don’t avoid difficult situations or conversations. Avoidance is more likely to cause the problem to escalate.
  • Evaluate how your tone may be perceived. And remember that email can make it difficult to effectively convey your desired tone.
  • Don’t be afraid to swallow your pride. Doing so could help you resolve an issue before it becomes a legal matter.
  • Evaluate and enforce best practices regarding how your employees should communicate.

2 – Make Documentation a Priority

To help protect yourself and your business, take time to document important communications and commitments. The following suggestions are some best practice tips for keeping up with appropriate documentation.

  • Keep all your emails organized in a good filing system.
  • Don’t do handshake deals this includes both business and personal agreements.
  • Avoid using templates you find via Google search to create your agreements/contracts. Each state has different legal aspects and you don’t know if the templates are accurate or current.
  • Be sure to have key contracts, including vendor agreements, reviewed by counsel, in order to help you understand the relevant provisions. It is also best to hire legal counsel for, at a minimum, reviewing and/or drafting of custom deal contracts, settlement agreements, employee handbooks, document retention policies, sexual harassment policies, and non-compete agreements.
  • Save what is important, such as contracts, loan documents, key documents underlying contracts and relevant negotiations, proof of payment, calendars, and tax information.

Important note – If you are anticipating business litigation, you must implement a litigation hold (also known as a preservation order or hold order).  Once you know of the existence of a dispute or even a potential dispute, hold onto all information so that nothing gets deleted. The loss of relevant evidence because of failure to institute a litigation hold can result in negative sanctions against you by the Court in any related litigation.

3 – Review Your Insurance Policies

Insurance isn’t a popular topic of conversation, but it is an important aspect of risk mitigation. Review the following points to help ensure your business is accurately covered.

  • Make sure that all current policies are correct and appropriate for your organization.
  • Investigate your options with multiple brokers.
  • Determine if the insurance company you are working with focuses on your niche business needs. Are they industry-specific to you?
  • Understand your potential need for multiple types of policies, including general commercial liability, errors and omissions, auto, property, workers comp, product liability, and other riders/endorsements.
  • Understand the obligations you owe to your insurance company, such as notice requirements, providing documents and cooperating fully in any investigation. Be sure not to settle with the other side without first getting your insurance company involved.

4 – Review Your Business Formation

Occasionally, business owners are surprised to learn their business structure is not appropriate to their type of work. To help minimize liability, you will want to engage counsel to help determine the appropriate corporate entity for your business. You will also want to keep corporate records, annual reports, and minutes if your business formation requires it. Make sure to follow all the formalities in order to ensure protection from personal liability. This step is key in avoiding business litigation.

5 – Work with the Right People

This is easily the most important tip on the entire list. The best way to protect yourself and your business is to make sure you are surrounding yourself with the right people. As the great Albert Einstein once said, “A clever person solves a problem. A wise person avoids it.”

To learn more about business litigation and how you can proactively protect your business, visit https://epiphanylaw.com/practice-areas/litigation/ or call us at 920-996-000.

 

About the Author

Heather J Macklin, Business Litigation Attorney

Heather J. Macklin

For nearly 20 years, Heather has focused her practice on complex commercial litigation. She has represented clients from a broad spectrum of industries, including financial institutions, luxury good retailers, real estate developers and small, closely held corporations. Contact Heather here. 

Avoiding the Top 7 Landmines in M&A

If you’re a baby boomer and you’re a business owner, chances are you’re starting to think about selling your business. So many unknowns surround the sale process, but one thing is for certain–you will want to be confident about whatever decision you make.  Confidence starts with knowledge of the sale process and an understanding of how costly shortcuts can be. You only have one chance to sell your business and there are no do-overs. What follows is a brief summary to help you learn–and avoid–the top seven landmines we see in Mergers and Acquisitions (M&A) transactions.

Landmine #1 – Not appreciating the state of the Mergers and Acquisitions market.

The M&A cycle has large ups and large downs. This is out of your control. However, understanding the market allows you to be proactive and take the best course of action. Currently, the market is hot and buyers are overpaying for desired targets.  The M&A market won’t stay like this forever and the time to sell may very likely be now.

Landmine #2 – Not Understanding Business Valuations

Could a mother or father put a price tag on a child? For the owner, selling their business almost seems like a similar struggle. Owners have poured their blood, sweat and tears into building and running their company; making it difficult for them to be objective.  A Business Valuation, even a short form valuation, will help the owner get a true understanding of what value a buyer would attribute to the business.

Landmine # 3 – Not Understanding Net Value

Much time is spent negotiating the purchase price, but what should really matter to a seller is how much money they will put in their pocket at the end of the transaction.  The net value should always be computed on the front end. To avoid disappointment, you need to keep in mind how different the sales price can be from the net value. Just some examples of items that needed to be deducted from the sales price are as follows:

  • Transaction expenses (including broker, lawyer and accountant)
  • Equipment financing
  • Lines of credit
  • Working capital
  • Taxes (including depreciation and recapture)
  • Escrow
  • Seller Note

Landmine #4 – Not Understanding Risk Allocation

Warranties and representations are the promises the seller makes to the buyer as to the condition of the business. They tend to make up the bulk of the long purchase agreement that will be signed between the parties.   Common examples include:

  • Ownership of Intellectual Property
  • Proper Classification of Employees
  • Binding Contracts
  • Environmental Condition of Property

Another important aspect of risk allocation is indemnification.  Sellers must pay attention and heavily negotiate how much post-closing risk they will bear.  The seller and the buyer must negotiate complicated matters such as a cap on post-closing liability, how long representations and warranties will continue after closing, and if a deductible applies to minor claims that arise following closing.

Landmine #5 – Not Planning Ahead

The value of proactive planning cannot be overstated.  Identifying and fixing a problem before a buyer discovers it will have very real positive impact upon the value the buyer will pay and the amount of post-closing risk a seller will bear.  If you plan to sell your business in three years, the time to start planning is now.  (Somewhat) simple steps you can take to increase value include:

  • Increase EBITDA
  • Reduce working capital
  • Lock in key employees
  • Reduce long-term contractual obligations/buy-outs
  • Eliminate risks found in due diligence
  • Clean up financials
  • Ensure contacts are binding and assignable

Landmine #6 – Short cutting the process.

It is also essential to let an experienced advisor guide you through the sale process. Short-cutting the process can lead to leaving money on the table or blowing up the entire deal.

Landmine #7 – The Wrong Players

Understanding the nuances of the M&A world takes years of learning.  Buyers can identify an educated and committed Seller by the team they assemble around them.  Do not leave the sale of your most important and valuable asset to a general practitioner.  Having an experienced M&A attorney will translate into improved economic consequences, less risk, and a smooth closing.  A buyer’s counsel will spot an inexperienced advisor a mile away. And, they’ll negotiate accordingly.

If you are thinking of buying or selling a business, it’s important to be proactive. Advanced planning now will mean the difference between achieving your business goals or missing the opportunity. To learn more, you can email info@epiphanylaw.com or call us at 920-996-000.

 

About the Author – Kathryn M. Blom is an attorney with Epiphany Law. Her practice focuses on complex business law, contracts, exit planning, securities, mergers and acquisitions. She advises her clients on how to identify effective solutions and achieve their business goals.

Protecting Your Financial Health from Nursing Home Costs

No one likes to think about getting older, but aging is unavoidable. And, as we mature, taking care of our health and wellness becomes even more important. Chances are, you’re already making good nutrition and exercise choices. But, how would you describe your financial health? Are you protecting your assets with an estate plan?

In 2018, the average cost of nursing home care in Wisconsin was over $8,300 per month. Unfortunately, nursing home expenses are anticipated to continue to rise three times faster than the general rate of inflation.

If you need supportive care from a nursing home because of aging and chronic conditions, it’s important to understand that health insurance or Medicare will not cover these massive costs. Now is the time to be pro-active. Learn how you can receive the care you need and protect your financial health at the same time.

Know your options when it comes to protecting your assets.

It is estimated that nearly half of all people that reach age 65 will need long term care assistance. You have three basic choices for care providers:

In-home care 

While most people prefer to remain in their homes, this isn’t always possible. To help determine if you are a good fit for in-home care, it is crucial to be honest about how much care you truly need. As of 2014, the average annual costs for in-home care in Wisconsin was $50,336.*

Assisted living facility

This type of facility is best suited for older adults who do not require constant care but may need assistance with medication management or other basic tasks. For a one bedroom single occupancy room, the average cost in Wisconsin was $46,200.*

Skilled nursing facility

This type of facility is for people who need medical care or daily therapy services from a registered nurse. It offers care 24/7. For a semi-private room in Wisconsin, the average annual cost was $87,363.*

First things first. Make sure your have a well-drafted estate plan.

Every estate plan needs to address the essentials: a will or trust, financial power of attorney, health care power of attorney, a living will, HIPPA waiver and a marital property agreement. If you have already completed an estate plan, it is important to re-evaluate it every couple of years to determine if it needs any updating, especially if there has been a change in your health. You’ll want to make sure your plan and the representatives listed continue to reflect your wishes. If you have not yet completed an estate plan, this will be your first step to protecting your long-term financial health.

*All prices are based on the 2014 Genworth Cost of Care Survey – Wisconsin.

 Long Term Care Insurance

Another important step is checking into long-term care insurance. Though long term care insurance can be expensive, it will provide a source of payment, in some cases, for in-home care and assisted living (whereas Medicaid will provide payment for only nursing homes).  A long term care policy, in most cases, will give you more options regarding your long term care.

Protecting your assets

Unfortunately, some people will not be eligible for a long term care policy because of finances or health conditions. However, you may still be able to protect some, if not, all your assets from the costs of nursing home using a couple of different strategies.

If you plan far enough ahead, you may be able to protect assets through the use of an irrevocable trust. An irrevocable trust requires you to give up control of the assets transferred to the trust.  However, a properly drafted irrevocable trust generally allows you to minimize taxes, protect your assets from the nursing home and still, in some cases, give you access to the funds.

You might also want to consider asset conversion. Many people mistakenly believe they can’t qualify for Medicaid because they own certain assets. But, the truth is, Medicaid allows for some flexibility.

The following assets will not be considered (or “counted”) by Medicaid.
  • Cash up to $2,000
  • Primary residence given the Medicaid applicant or his/her spouse resides there and the equity value is at $878,000 or less
  • One car at any current market value
  • Personal belongings and household items such as furniture and appliances
  • Pre-paid funeral and burial arrangements
  • Personal property that is essential to a person’s self-support (for example: farm, rental properties or real estate investments)
  • For a married couple, the non-institutionalized spouse can exempt half of the married couple’s countable assets up to a maximum of $126,420 for 2019 and the non-institutionalized spouse’s retirement plans.

Please keep in mind that Medicaid is a complex government program, jointly funded by the state and federal government. The guidelines are complicated and frequently change. The best way to make sure your long-term financial health is protected is to work with an attorney who understands Medicaid and has extensive experience and elder law knowledge. They can take the guesswork out of the estate planning process and give you confidence about your financial future.

Estate Planning Attorney Patrick Furman

About the Author

Patrick Furman is an attorney with Epiphany Law and has been practicing law for over 15 years. He focuses his practice on all aspects of estate, succession, and tax planning as well as probate avoidance, irrevocable and revocable trusts, life insurance, spendthrift and special needs trusts, along with wills, durable powers of attorney and advanced health directives. To learn more about protecting your assets, ask Pat a question.