The Grove Report

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.

Why Did My Neighbor Send Me a Bill for His Fence?

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By popular request–OK, by one person’s request–I’m going to write about how Wisconsin’s fence law can create unfriendly neighbors. As attorneys in a rural town, it’s an issue that rolls into our office every so often.

The fence law, currently found in Chapter 90 of our state statutes, says that a fence is required if the property on either side is used for farming or grazing unless the neighbors agree that one isn’t needed. So the person doing the farming or grazing pays for it, right? Not so fast my friend!

The law, which dates back to when Wisconsin was part of the Michigan Territory, states that the neighbors must split the cost to build and maintain any fence. As you might imagine, this can create quite a conflict between a farmer and his new subdivision neighbors when the farmer throws up a fence and sends half the bill to these suburbanites.

Those suburbanites often call our office to complain because surely this isn’t fair. But, despite some clamoring that the law should be repealed because it’s no longer practical, it’s still on the books and we have to give them the bad news (but at least get to congratulate them on their new half a fence!).

We Broke Off the Engagement–Who Keeps the Ring?

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During happier times, the future husband saved up, hopefully went somewhere other than Jared, and gave a big ole rock to his soon-to-be-bride. Then, disaster strikes: “I thought we were in an open relationship!” “Where were you hiding all these credit cards?!” “You voted for WHO?!” The next thing you know, the engagement’s off and our heartbroken lovers are wondering who gets to keep the engagement ring.

In Wisconsin, the courts have already decided that issue. According to the judges in Brown v. Thomas, engagement rings are “conditional” gifts. This means that an engagement ring is a gift conditioned on the marriage actually happening. If the marriage doesn’t happen, the ring must be returned.

But, she cries, that dirtbag broke up with me (or caused me to break up with him)! In Wisconsin, it doesn’t matter. Just like divorces are “no-fault” in the court’s eyes, so are engagement break-ups. In other words, Wisconsin’s judges have decided that they aren’t going to touch the whose-fault-was-it issue with a ten-foot pole.

It might be good news for you or bad news for you, but in Wisconsin, the engagement ring goes back to the buyer if the engagement falls through.

What is a Guardian ad Litem?

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Many parents handle their family law matters without an attorney and often the first time they’re surprised is when a guardian ad litem gets involved. I can’t find the statistic, but I recall hearing that over 80% of the family law cases in Rock County do not have either party represented by an attorney.

Even without an attorney, the beginning stages of a custody case usually make sense. You show up to the initial hearing, the judge asks whether the parents agree on a plan, and, if the answer is no, the judge sends the parents to mediation. The case ends if a deal is reached at mediation. If not, the parents are notified that a guardian ad litem has been appointed. At this point, most parents typically ask, “who the hell is that?”

The guardian ad litem (“ad litem” means “for the suit”), or GAL, is a court-appointed attorney whose job is to advocate for the best interest of the child. And yes, this person is always an attorney per Wisconsin law. (As a side note, I’ve always thought that social workers, child therapists, and teachers would all be better suited for the role than lawyers, but so far the Wisconsin legislature hasn’t asked for my opinion.) To figure out what is in the child’s best interest, GALs will usually interview the parents, the child (if they’re mature enough), and other people with information like teachers or medical providers. At the end of their investigation, the GAL will make a recommendation to the judge about how they think the case should be decided.

The judge can ignore the GAL’s recommendation, but in practice, the judge will almost always adopt the recommendation or something close to it. That means that the GAL is often times the most important decision-maker in the case.  I’ll write more about guardians ad litem and how to work with them in future posts, but the important thing to remember for now is that they will be incredibly important to your case and you should treat them accordingly.

The Importance of Prenups for Older Couples

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We’ve all seen the story. Mom and dad are retired, sitting on the pile of money they earned throughout their working lives. Mom passes away, dad starts to get lonely, and the next thing you know dad is spending a lot of time with a woman you’re pretty sure you used to babysit. We have the makings of one of the greatest conflicts in humanity: the children versus the “gold digger.”

While few of us experience the stereotypical “gold digger,” it isn’t uncommon for adult children–who are often set to inherit from their surviving parent–to become nervous when that parent starts a new relationship, regardless of the new partner’s age or motivations. The kids have been in the mix for decades and it’s scary to think that a new fling might walk away with your parents’ house and retirement accounts. Even if this isn’t the new partner’s goal, the threat alone can go a long way towards poisoning the relationship between the kids and mom or dad’s new partner.

In these situations, I always recommend a prenuptial agreement. These are flexible documents that can be tailored to any given situation. And often times, it allows the parties themselves to discuss what their expectations are regarding the financial part of the relationship for the first time. These types of discussions can be difficult, but I can promise you it’s much easier than the fight that can erupt between the children and the new spouse after the parent is gone.

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.


Being the “Winner” in Your Divorce

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For readers who are thinking about or just starting their divorce, “winning” is an important concept. They want to win the property division, win the child custody fight, and win on spousal maintenance and child support. And in our first meeting, they want to know how I’m going to help them win.

Veterans of the divorce process sing a different tune. One that sounds a lot like Tiger Man McCool from Bobby Bare’s song “The Winner” (lyrics by Shel Silverstein!). In the song, Tiger Man McCool is known to have won every fight he’s ever been in. But when he’s challenged to another one, he talks about how his teeth got knocked out like Chiclets, a steel pin holds his jaw in place because he crashed his motorcycle in his most successful race, he broke his back fighting a guy after he slept with the guy’s wife, and his nose might fly off if he sneezes because he’s broken it so many times.

Divorce “winners” are often in a similar spot. They might have a little more of the property, a little more time with the kids, and a couple bucks more in spousal maintenance. Rather than busted teeth and a steel pin in their head, though, they paid their lawyer thousands and thousands more than they had to. They embarrassed someone they have to co-parent with for the next decade in open court. They probably alienated a fair number of mutual friends and they spent many sleepless nights fighting a two-year divorce that could have been over in six months had they been willing to compromise.

So if you’re new to the divorce process, ask a friend (or a family law attorney) who’s been through it what makes someone a “winner.” I think they’ll sound a lot like the guy who walked away from fighting Tiger Man McCool: “But my eyes still see and my nose still works and my teeth’re still in my mouth. And you know I guess that makes me the winner…”

How Much Child Support Will I Get (or Have to Pay)?

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In addition to spousal maintenance, the other monthly payment soon-to-be divorced parents have to worry about is child support.

Wisconsin addresses this issue by throwing a bunch of formulas at you. It’s easy enough to understand for experienced family law attorneys, but it can be confusing for people who don’t work with them every day.

The first thing to do is determine what category you fall in. Are you (roughly evenly) splitting the time each of you will have responsibility for the kids? Then you’re looking for the “shared placement” formula–this one compares both of your salaries and the number of nights you’ll be responsible for the kids and spits out an amount.

Will one parent have the kids a vast majority of the time? Then the other parent will pay a set amount of their pay–somewhere between 17% and 34% depending on the number of children. The important thing to note is that the custodial parent’s pay generally doesn’t matter in these cases.

What if one parent is taking one child and the other parent is taking the other? Then you need the “split placement” formula. Much like the shared placement calculator, the parents’ salaries are compared and the formula calculates the amount of support.

What if the paying parent is already paying child support from a previous relationship? That’s a “serial family” case and each kid is going to get slightly less support than the ones before him or her.

Finally, what if I making a cool $1 million a year and my ex takes care of our child? Paying 17% of that, or $170,000 a year, seems like a lot of money to raise a kid, doesn’t it? It does, so the judge has the discretion to apply the “high income payer” formula.

Once you know your category and want to get an idea of what child support might look like in your case, you can find the various calculators here. Or, you can call me and we can walk through it together.

One final note (and one that will be the subject of a future post): the judge has the authority to deviate from these formulas, but, in most cases, I wouldn’t count on them doing so.

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.

Gwyneth Paltrow Has Not Made Divorces a Little Less Painful

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According to the Huffington Post, Gwyneth Paltrow hopes that she’s made your–yes, your–divorce a little less painful because her and her former husband “have contributed something positive to the culture of divorce.”

I can report that none of my divorce clients have mentioned that Gwyneth Paltrow helped them through the tough times. Hopefully, despite this setback, the rich, famous, and clueless continue to send aid to those of us in the trenches.