This conversation meets the three criteria of a crucial conversations because: (1) the stakes are high, (2) opinions may very and (3) emotions may run strong. There are three possible outcomes when a crucial conversation is presented: (1) avoidance, (2) enter into the conversation and handle it poorly, or (3) enter into the conversation and handle it well.
The key to handling a crucial conversation well is "dialogue" which the authors define as the free flow of meaning between two or more people. The best possible outcome will result when everyone feels it is safe to express their ideas, thoughts, feelings and opinions. To feel safe in a conversation one needs to know: (1) the other parties care about you (mutual respect) and (2) the other parties care about your best interests and goals (mutual purpose).
Now let's apply this thinking to the subject at hand. A conversation might begin as follows:
Child: Mom and Dad, you know I care for you (mutual respect) and I want your wishes to be fulfilled should you become ill and even at your death (mutual purpose). As a result, I am hoping we can have a candid conversation about what your wishes are and whether those wishes are adequately incorporated into an estate plan.
Possible responses may fall within a broad range such as:
Parent: Sure, let me put your concerns to rest. Here is my complete estate plan and let me know if you have any questions or concerns.
Parent: Thank you for your concern. I will make a priority of meeting with my attorney and getting my plan up-to-date.
Parent: Thanks, but it is none of your business.
Parent: You are greedy and manipulative!
If you find the conversation has not gone well, remember to stay focused on what you really want: a true dialogue focused on your parents' desires and how best to make sure those desires are actually fulfilled. Dialogue may take time and numerous attempts, but it will happen only when your parent feels safe. Circle back to establishing mutual respect and mutual purpose. When the topic is personal and sensitive the authors suggest restoring mutual purpose by showing your intentions are honorable. One method to clarify your intentions is to contrast your honorable intent by stating what it is not.
Child: I am not trying to influence your decisions or change your wishes. I am only trying to be sure your decisions and wishes are honored when the time comes.
Remember, these conversations may not be easy, but they are important. Also, remember that many parents worry about their adult children and wonder if their children have done their own estate planning to state their wishes and to protect their children's spouse(s) and children. So be prepared if they ask whether your estate plan is in order!
]]>It can be easy to overlook motor vehicles when planning for what happens to one's assets upon one's death because motor vehicles often depreciate in value. But, the value of motor vehicles can cause a person's estate to go through probate, even if the plan for every other asset was set up to avoid probate. This can happen in many scenarios. For example: (1) A person saved up and bought a valuable vehicle in his/her own name that holds significant value at the time of death; (2) A person owns one or more collectible cars in his/her name alone at death that have significantly more value than what was paid for the vehicle due to the improvements over the years; and (3) a person owns a number of vehicles, boats, RV's, etc. that, when added together, add significant value to a person's estate.
Make sure to ask an estate planning attorney if naming a Transfer on Death Beneficiary makes sense for you in your situation.
Contact Attorney Heidi Van De Berg, or any of the other estate planning attorneys at Gries Lenhardt Allen P.L.L.P., to discuss if naming a beneficiary on a vehicle is right for you.
]]>A common way to avoid probate is by naming "payable on death" beneficiaries on all your assets and accounts. In Minnesota, you can name beneficiaries on real estate, cars and financial accounts. When you die, these assets pass directly to your named beneficiaries without a probate. The downside with using beneficiary designations, however, is nobody in charge.
If there is no one in charge, who will pay your final bills? Will each of your children pay his or her share from the money received by beneficiary designation? And if you name several children as beneficiaries on your house, then they each have equal say about the decisions involved in selling your house. If any of your children are married, their spouses must also be involved in selling the real estate.
In some families, the adult children can cooperate to pay the final bills and sell the assets. In other families where the adult children do not get along, there are problems if no one is in charge. What if one of your adult children is disabled or struggling with addiction or mental health issues? There are many reasons why adult children cannot work well together when nobody is in charge.
Probate is seldom a "big deal" in Minnesota. Most probates involve no court appearances. The advantage of a probate is the court appoints an executor (or personal representative) to gather the assets, pay bills, sell assets such as real estate or cars, and then distribute the remainder according to your Will.
The personal representative named in your Will has authority to handle only those assets without beneficiaries. If you have named beneficiaries on all your assets and accounts, there will be no personal representative and, thus, nobody in charge. If your children cannot cooperate to deal with your final bills and your assets, they may end up in court.
Before you rush to add beneficiaries on all of your assets and accounts, speak with your estate planning attorney about what is advisable in your situation. Each family is different. In some cases, avoiding a probate with a Trust is better than relying on beneficiary designations. In other cases, doing a Will and letting there be a probate upon your death is the best option to preserve family peace.
Attorney Jill Adkins, with the Gries Lenhardt Allen law firm, has 30 years of experience in estate planning, probates and trust administration, and can advise you on avoiding conflict in your family after your death.
]]>A trust for the care of an animal, often called a "Pet Trust," allows a pet owner to not only designate who will care for their pet after they have passed away, but also allows a pet owner to set aside money for the care of that pet, and to ensure that the money will be used for that pet's care for the remainder of the pet's life. This can be especially important for a pet who is ill, or for a pet that may live for a long time such as a parrot or a horse.
And a Pet Trust also allows the pet owner to designate what happens to the proceeds remaining in the trust after the pet's death.
Pet trusts are the newest tool in the tool kit for planning for your pet, but there are also other ways to plan for your pet. Planning for your pet in your estate plan allows you to designate a caretaker for your pet to ensure that your pet will be cared for as you wish after you are gone, and planning for your pet can prevent family conflict when more than one family member wants to be the caretaker for a beloved family pet.
Contact Attorney Heidi Van De Berg, or any of the other estate planning attorneys at Gries Lenhardt Allen P.L.L.P., to discuss planning for your family pet.
]]>But once you have a Health Care Directive how often does it need to be updated?
Technically, a validly executed Health Care Directive is good until a person's death unless it is revoked. But, practically, a Health Care Directive should be reviewed and updated periodically to ensure that it still accurately expresses your wishes.
The extent of the content you include in a Health Care Directive should be revisited as you age, when your health changes significantly, when a significant amount of time has passed, or if your spiritual, personal, or cultural values change.
When you are young and healthy, a Health Care Directive should name an agent, and indicate your general preferences for treatment in the case of a life-shattering accident.
If you develop a chronic disease or condition, you should update your Health Care Directive after a discussion with your physician about your prognosis. And if you are diagnosed with a terminal disease or condition, you should review your Health Care Directive to ensure that the existing provisions still reflect your wishes and to make sure you have included personal, spiritual and cultural information and preferences regarding the end of life.
It is also a good idea to update your Health Care Directive frequently because some doctors may be reluctant to follow provisions to withhold or withdraw care if the Health Care Directive has not been updated for a long period of time.
Contact Attorney Heidi Van De Berg, or any of the other estate planning attorneys at Gries Lenhardt Allen P.L.L.P., to discuss whether you should update your Health Care Directive.
]]>Too frequently, unrepresented people blindly enter guilty pleas with the State without fully understanding their rights. Enhancement provisions can dramatically increase your fines, your license suspension, and possibly even your punishment. A prosecutor doesn't necessarily have your best interests in mind, and more-often-than-not, they are simply looking for a quick conviction. An experienced attorney can help you understand what is being asked of you and will hold law enforcement to a higher standard to ensure that you aren't being rushed into a guilty plea.
When addressing a DWI in Minnesota, there are many questions you can ask the Court that you may not think to ask. These questions can include: Was the stop legal? Was law enforcement allowed to search the vehicle? Was the Implied Consent Advisory read? How long did it take to administer an admissible blood test after the arrest was initiated?
These questions can often be the difference between a conviction, a reduced charge, a dismissal, or an acquittal. However, because the judicial process is complicated, these questions need to be posed in a motion form, conform to the procedural rules, and may require that certain people, such as the officer, be subpoenaed.
You owe it to yourself to protect your rights - an experienced attorney in your corner can help you accomplish that. In my legal career, I have represented hundreds of individuals in Minnesota and North Dakota charged with a crime, and I know how to effectively navigate the prospective pitfalls you'll be faced with.
]]>Who may be eligible for Social Security survivor benefits?
Under certain circumstances, the following family members may be eligible for survivor benefits from Social Security:
A widow or widower of a deceased spouse
Unmarried children of a deceased parent who meet certain requirements
A deceased person's dependent parents who meet certain requirements for age and level of support
The former spouse of a deceased person may also be eligible in certain situations
What type of benefits can surviving family members receive?
Social Security survivor benefits can include both a recurring monthly benefit amount and a one-time death payment.
How much can surviving family members receive?
The amount of the Social Security survivor benefit depends upon many factors, including the age of the person receiving the benefits and how many people within the family are receiving benefits. But, there is a maximum amount that family members can receive every month, which is based upon the amount the deceased worker could have received at the time of the deceased worker's death.
What events could affect the amount of Social Security survivor benefits?
The Social Security survivor benefit amount could be affected by events such as a subsequent marriage or receipt of a pension based on work not covered by Social Security.
Contact Attorney Heidi Van De Berg, or any of the other estate planning attorneys at Gries Lenhardt Allen P.L.L.P., to discuss Social Security survivor benefits.
]]>In a blended family, it is often difficult to determine where assets should pass upon death. Often there exists two valid but potentially competing goals: (1) providing for the surviving spouse and (2) providing for the children from a previous marriage.
There are three basic approaches to distributing assets in a blended family.
(1) I refer to the first approach as "trust and obey". The asset is passed outright to the surviving spouse and you trust that the surviving spouse will obey your wishes that the asset passes to your children upon the second death. The advantage is simplicity. The disadvantage is that your children may not receive any assets if the assets are used up prior to the second death or if the surviving spouse chooses not to obey your wishes.
(2) I refer to the second approach as "trust a trust". The asset is passed into a trust for the benefit of the surviving spouse for the life of the surviving spouse and the trust passes the remaining trust assets to your children upon the second death. The advantage is that the surviving spouse will be provided for currently and the children will receive the assets eventually. The disadvantage is the awkward family dynamic created by the surviving spouse not having complete control over the trust assets and the children waiting for the step-parent to die before receiving the trust assets.
(3) I refer to the third approach as "divide and conquer". At death certain assets are passed outright to the surviving spouse and other assets are passed outright to your children. The advantage is that goals of providing for the surviving spouse and the children are both satisfied immediately upon death. The disadvantage is it requires sufficient assets to provide for both the spouse and the children simultaneously. In situations where the assets are insufficient, life insurance can be used as part of this approach.
Additional complexity may arise in planning for a blended family because second marriages often include assets legally or mentally categorized as "yours, mine or ours". Accordingly, one asset may pass using one approach and a different asset may be passed using a different approach.
Each blended family is unique and each blended family presents its own estate planning challenges. Let us help you develop an estate plan suited to meet your individual family goals.
]]>If your LLC was formed after August 1, 2015, you are already governed by this new law, so no changes will be required. However, all LLCs organized under Minn. Stat. 322B (or prior versions) automatically became governed by Minn. Stat. 322C on January 1, 2018. This new chapter (and set of laws) is called the "Revised Uniform Limited Liability Company Act" (RULLCA) and it significantly changes how LLCs will operate.
Some of the relevant highlights under RULLCA are as follows:
LLCs can now be governed by unwritten agreement (i.e. oral agreements among the members), by practices implemented through the members' past actions, or by way of a written agreement (which is recommended now more than ever to resolve any disputes that may arise from the first two options);
LLCs will now be generally controlled by the members (i.e. like a partnership), as opposed to a Board of Governors; however, LLCs may still elect to be governed by a Board of Governors;
Unless otherwise agreed to by the members, distributions to members will need to be made in equal shares instead of in proportion to the members' contributions or ownership interests;
Unless otherwise agreed by the members, the members will now have equal voting power, instead of power proportionate to their ownership percentage; and
Members, managers and governors (to the extent the latter two exist) will be subject to fiduciary duties of loyalty and care.
If these changes apply to your LLC and you have not taken appropriate measures, don't panic! You can still make necessary adjustments. You should also know that if you had a member control agreement, there is a provision within RULLCA that allows that document (and the agreements contained therein) to continue to be relevant. Nevertheless, you are encouraged to review your governing documents to ensure they contain terms consistent with your intended governance plans and to protect against being subjected to the default language contained in RULLCA.
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