Changes at Mishawaka Law

I began my solo law practice a little over two years ago. Branching out on my own has been one of the best decisions I’ve ever made. It would not, however, have been possible without my amazing mentor and friend, Attorney Richard (Dick) Currey.

Both Dick and I have reached places in our careers where entering into a partnership with one another makes sense. So as of July 1, 2017, I will no longer be “Owner, Mishawaka Law,” but “Partner, Schindler, Olson, Currey, & Dendiu.” I’m incredibly honored to become part of a law practice that dates back over 100 years.

There won’t be too many changes on the front-end. My contact information will remain the same (especially my email address, joel@mishawakalaw.com). And my mission still remains the same: to provide you with excellent legal service at an affordable price. I look forward to this new chapter in my career and look forward to serving you as a partner at Schindler, Olson, Currey, & Dendiu!

Power of Attorney Authorization

An often-overlooked component of estate planning is the Power of Attorney Authorization. When you sign such an Authorization, you grant someone else the power to, essentially, be your agent. That person can withdraw money from your bank accounts, sign checks, take out loans in your name, and so on.

 

Why?

 

You might wonder why you would want to provide someone with such power. Suppose I have a stroke, which leaves me mentally and physical incapacitated. My wife decides that we should sell our house so that we can move into a home that is handicap-accessible. But there’s a problem: the house is titled in both of our names, meaning that my signature is required to sell the home, and since I’m now mentally incapacitated, the law says I can’t sign. My wife, if she wants to move forward with selling our house, must now petition a Court to be appointed as my Guardian, which means extra time, hassle, and expense.

 

mattressPay Now, Peace of Mind Later

 

Paying upfront is rarely fun. Our tendency is to think, “I’ll save some money by buying a cheaper mattress or buying some cheaper tires or buying a cheaper pair of shoes.” In the same vein, many today think, “I don’t need to see an attorney regarding estate planning; I’ll save some money because these sorts of things will never happen to me.” Of course, everyone thinks it will never happen to him or her. We just don’t know what life is going to throw our way. I recommend that you invest upfront so that you can rest assured that you and your loved ones are taken care of.

 

–Joel Dendiu

Probate Versus Non-Probate Transfers

An important concept to understand when engaging in estate planning is “probate versus non-probate transfers.” Any property that passes through or under a will is called a probate transfer. Suppose I die, and my will states (among other things), “I give, devise, and bequeath all of my property, both real and personal, to my spouse.” On the date that I died, I owned a house in my name only. My will gets submitted to the court (part of the probate process), and the house eventually ends up in my wife’s name due to my wishes as laid out in my will. The actual probate process contains many more steps than that, but for the purposes of this article, that explanation will suffice.

 

Non-probate transfers

 

But further suppose that I have a life insurance policy with my son as the named beneficiary. Upon my death, my wife seeks to collect the life insurance policy for herself. My wife reasons, “Joel’s will said that I take everything.” But the life insurance policy is a non-probate transfer. It does not pass through or under my will. So even though my will says that I leave everything to my spouse, my spouse is not entitled to the proceeds of the life insurance policy; my son, as the named beneficiary, is.

 

Contradictions

 

The situation above surprises a lot of people. Most people think, “The will says my spouse gets everything, so he/she really should get everything.” But the will has absolutely no power, control, or authority over any non-probate transfer…and there are a lot of different types of non-probate transfers. Joint checking accounts, for example (so long as they have rights of survivorship), pass instantaneously upon the person dying; the will is not involved at all. So if I had a joint checking account with my son, and my wife’s name wasn’t on it, she wouldn’t get the funds in that checking account, just like she wouldn’t get the funds from the life insurance policy. Most people naturally think, “If there is a contradiction in the estate plan—say, between a will and a life insurance beneficiary—then the will controls.” But that’s just not how it works.

 

Don’t leave it to chance

 

There’s simply no reason to leave these sorts of situations to chance. You might think you have a decent understanding of the law, but I do estate planning for a living. It’s my job. I have almost certainly thought of things that you haven’t thought of. Use me to ensure that your last wishes actually happen.

 

–Joel Dendiu

Frivolous Lawsuits: Getting Paid

Frivolous lawsuits: getting paid

You’ve been sued…and you have no idea why. There’s been some sort of mix-up: either they didn’t give you credit for your last payment, or they have the wrong person. Luckily, you’ve saved all of your receipts, and you’ve got solid evidence that the lawsuit has no basis. You contact the party who initiated the lawsuit and even send the party your documentation, but the party won’t back down. The lawsuit is still there, and the legal world is complicated. Oh, you could probably defend the lawsuit on your own, but we’re talking big-time consequences if you mess up. So you make the prudent decision and hire me to help.

Count your blessings

I charge you a (very) reasonable rate for my services, but you are still out-of-pocket through no fault of your own. How is that fair? How is it fair that someone can sue you with no basis and yet you have to spend money? You should first count your blessings that you live in Indiana. In some states, you have to pay the court to respond to a lawsuit. That isn’t the case in Indiana, but you do have to (or at least should) pay for an attorney.

The “American Rule” and its exceptions

Unfortunately, the so-called “American Rule” is that each person pays her attorney fees regardless of how the lawsuit turns out. This isn’t always the case; for example, it can be modified by agreement (most leases have provisions regarding attorney fees in, say, the event of an eviction or damage to the premises). And, luckily for you, Indiana has a statute that can do away with the American Rule in your situation, too. Ind. Code § 34-52-1-1(b) essentially states that if a party brings a claim or continues a claim that is clearly frivolous, unreasonable, or groundless, the defendant can recover costs (generally, money paid to the court) and attorney fees.

Justice restored

So you hire me to defend the lawsuit. I do my thing. You (hopefully; there are rarely any guarantees) win. And you get a judgment against the other party for the fees that you paid me. Justice is restored to the world. In all seriousness, these matters are complex, and they are exactly the reason you should turn to me for help. I’ll do my best to get you everything you are entitled to, even if that includes the very fee that you paid me.

–Joel Dendiu

Elect to be Taxed as an S-Corporation

Starting your own business is an exciting proposition: you’re the boss, and you get to do things your way. There are also many tax advantages to running a company. Entertainment expenses, for example, are generally tax-deductible at 50% of the cost. So if you take a potential client out for a meal, you can probably deduct 50% of the bill (which means that you aren’t taxed on that money).

 

Self-employment tax

 

There is, however, a pretty big tax hit that you take as a business owner: self-employment tax. Any income you make while self-employed—which includes income you make from your business—is taxed at a hefty 15.3%. This is in addition to regular income taxes.

 

LLCs vs. S-Corporations

 

Is there any way around this tax? Possibly. For small businesses, I generally recommend creating a Limited Liability Company (“LLC”). LLCs do a number of things for your business, but the big benefit is the liability shield. So long as you operate in a way that keeps you and the LLC distinct, your personal assets will not be at risk. An S-Corporation is another viable option for small businesses, but S-Corporations tend to require more formalities (e.g. annual meetings and minute books) than LLCs. S-Corporations do, however, have a potential tax benefit. In an S-Corporation, you may pay yourself a “reasonable” salary, and any excess funds can be distributed to you as dividends. Dividends are not subject to the 15.3% self-employment tax.

 

An example

 

Imagine that your business makes $80,000. Without an S-Corporation, you pay $12,240 in self-employment tax. With an S-Corporation, you pay yourself $50,000 and take $30,000 as dividends. You just reduced your tax liability by $4,590! But wait. I said, “I generally recommend creating an LLC.” Why not an S-Corporation? Because you can have the best of both worlds. The IRS allows your LLC to elect to be taxed as an S-Corporation (by, among other things, filling out and submitting IRS Form 2553). Then, you have less formalities as an LLC, but you also have the ability to avoid self-employment tax.

 

You and John Edwards

 

If you’re afraid that something like this isn’t legal, just look at what John Edwards did from 1995 to 1999. In 1997 alone, Edwards made more than $26 million as an attorney (I’m apparently practicing the wrong kind of law). Yet he paid himself $360,000 in salary and took the rest as distributions. Over those years, Edwards saved approximately $600,000 in taxes! His tax returns were in the public eye in 2004, and no one—most importantly, not even the IRS—batted an eye at the legality of what he had done.

 

Use me to help you become the next John Edwards. Well, perhaps you’d prefer to use me to help you make as much money as John Edwards. Either way, I’m here and waiting for your call (574.514.3566).

 

–Joel Dendiu

Estate Planning: Leave Her $1

$1

 

You may have a desire to leave a family member out of a will (e.g. a son or daughter). The law generally allows you to do so. You may have this desire for various reasons. Perhaps the individual is already well set financially. Or perhaps you have a rift in your relationship with this individual. Whatever the case may be, if you want to leave someone out of your will, do not name the person as an heir and leave her $1.

 

A troublesome heir

 

There are a couple of problems with this approach. First, going this route has a greater chance of upsetting the individual than simply leaving her out of your will. But perhaps that’s your goal. Perhaps you do want to upset the individual. You should, nevertheless, still not take this approach because as soon as you name the person as an heir, she can create all sorts of havoc. In either circumstance, the individual can contest the validity of your will, but such contests are very difficult to prove and usually fail. As a named heir, however, she has the power to do other things, like challenge the final accounting of the estate, challenge the validity of executor fees, etc.

 

Leave spite out

 

While spite may be in your motives, keep it out of your estate planning. Otherwise, you can create a recipe for disaster.

 

–Joel Dendiu

Quiet Title Complaint in Indiana

Where’d that come from?

You’re all set to sell your home: you’ve hired a great realtor; you’ve staged the house nicely; you’ve put on a fresh coat of paint. Things go exactly as planned, and an offer comes in. The process gets started, and the Title Company runs a Title Search on the property. Lo and behold, a judgment lien shows up on the Title Search! This is news to you. You thought you owned the property free and clear. What are you to do? The seller wants a warranty deed from you, not a quit-claim deed. For today’s purposes, all you need to know is that you cannot provide said warranty deed without clear title, which you don’t currently have as a result of the judgment lien.

Not playing ball

You contact the party with the judgment lien, but she isn’t willing to play ball. She declares that the lien is valid and that you have to pay up before she is willing to release the lien. You disagree; you think the lien is bogus. One of your options is to file a Quiet Title Complaint. You name the party with the judgment lien as a defendant, declare to the court that this party does not have an interest in your property, and ask the court to rule as such. The other party is served with your lawsuit, has her day in court, and hopefully (for your sake) loses. Now you can sell the property via warranty deed.

Drape color

There’s, of course, a lot more to it than that—for example, you may not even be able to locate the party with the alleged interest in your property, which means you would have to submit a request to the court to provide service by publication—but that’s the basic idea. I’m experienced with these sorts of situations and can take this burden off of your shoulders so that you can concentrate on the things you want to be concentrating on…like what color drapes to have in your new house! As always, I’ll provide you with an upfront, flat-fee quote so that you can pay and be done. I look forward to your call!

–Joel Dendiu

New Will vs. Codicil

Changes to your will

There may come a time when you want to make changes to your will. Part of what I do when I create your estate planning documents is to craft the documents in a way that cuts down on the need for revisions later in life. But sometimes, revisions are unavoidable. If/when you do need a revision, should you draft a codicil (that is, an amendment or addition)? Or should you draft an entirely new will?

You = me

When I say “you,” I really mean “me” (or at least someone like me). Non-attorneys are allowed to draft their own estate planning documents, but the results can be disastrous if the documents are drafted incorrectly. So let’s assume you come to me and say, “I now want to leave 75% to Anne and 25% to Bob.” Before typewriters and word processors, a codicil would have been your best bet. The attorney fee would be a lot lower to draft a codicil than it would be to write out an entirely new will.

Cloning sheep

But we live in a different world. To quote Jerry Seinfeld, “We’re cloning sheep now.” You might be able to provide me with an electronic copy of your will. Making a few changes to such a copy can be a very easy process. At the very least, you should have a paper copy that I can scan and then use Optical Character Recognition software on. This will be more time-intensive than an electronic copy, but it won’t take much more time than a codicil would.

Are codicils bad?

Why do I appear to be so against codicils? First, a codicil requires the same formalities (attested in front of and signed by two witnesses) as a will, so there’s really no advantage there. Second, a codicil is an extra document that must be kept track of and eventually submitted to the court when you pass. More documents means more of a chance of something getting lost or being missed. Finally, a codicil can be misinterpreted. What if it revokes an entire Article of your will? The revocation might be clear, but perhaps another Article of your will depends upon the first Article. What is a court to do when faced with these documents? There’s less of a chance of something like this happening when an entirely new will is drafted.

I hope you’ll contact me when faced with these sorts of issues so that I can provide you with peace of mind regarding your estate plan.

–Joel Dendiu

More On Trusts

Flexibility

Last time, I wrote about using a testamentary trust to prevent your minor children from receiving a large lump sum when they turn 18. Trusts can be used to accomplish other goals as well. One of the biggest benefits of a trust is flexibility. While a will, in a sense, only “speaks once,” a trust can allow your wishes to continue well after you are gone.

Two goals

Suppose you have adult children and that your first spouse, unfortunately, passed away. You re-marry someone who also has children from a prior marriage. You want to ensure that your spouse is taken care of when you pass, but it’s also your preference that when your spouse passes, the remainder (if any) of your property goes to your heirs, not your spouse’s heirs. There isn’t anything wrong with this desire, and it is, in fact, quite common.

A simple will would be inadequate

Accomplishing this goal with a simple will would be difficult. A will passes property from one person (deceased) to other people (living). If all of your property passes to your spouse when you pass so that your spouse is taken care of, nothing guarantees that that property will eventually end up with your heirs. Your spouse may promise, “I’ll make sure that the property coming from you gets to your children,” and your spouse may even mean it. But your spouse would have to take certain steps to ensure that this occurs (like keeping the property segregated, drafting her will in the correct way, etc.).

How to accomplish both goals with a trust

A trust provides a solid solution. You can place your property—either before or after death—in a trust and name your spouse as a beneficiary of that trust. Your spouse doesn’t technically own that property, but you can draft the trust document such that she receives regular distributions from the trust, which adequately provides for her (your first goal). You can then add a provision that upon your spouse’s death, the remainder of any property in the trust goes to your heirs, not your spouse’s (your second goal). This is possible because, again, your spouse doesn’t legally own the property in the trust, whereas if you pass all of your property to her under a will, your spouse does own the property.

Legal fictions

Trusts can be complicated, and I plan to write more about them later. For now, it’s enough to know that they are, in a way, legal fictions. Legally, the property is placed in the hands of a trustee. But equitably—or, put another way, how things actually play out—the property belongs to the beneficiaries.

As I’ve said again and again, this stuff can be tricky. Employ me to navigate your way through estate planning. It’s my promise that I’ll make things as smooth as possible.

–Joel Dendiu

The Testamentary Trust

Pick an age, any age…

For married couples with minor children, I’ll oftentimes recommend drafting a “testamentary trust” into the will. When the first spouse dies, the surviving spouse takes everything (which usually occurs through joint titling anyway). When the remaining spouse dies, if the children are under a certain age—say, 21 or 25—the will states that the sole heir of the estate is a trustee. The will further designates that the trustee is to hold the property in trust for the benefit of the children. Once the youngest child reaches a certain age, the trustee is to distribute the remaining trust assets to the children.

What 18-year-old is good with money?

There are two big advantages to this setup. First, it allows you to prevent the children from having complete control over a potentially large inheritance at age 18. Suppose you and your spouse pass and are survived by two teenaged-children. Your will names a guardian, and that person is appointed guardian of your children. While the inheritance belongs to the children, the guardian still has a level of control over the money…but that automatically ends when the child turns 18. If, instead, you create a testamentary trust (with your will) and name the guardian as trustee, then the children do not automatically have full control over the inheritance at 18. You can designate any age you wish. And even though the money “belongs” to the trustee, the trustee is holding the money for the benefit of your children. The guardian cannot just do with the money what he or she pleases (there are protections in place in the law of trusts).

Flexibility

The second benefit of a testamentary trust is flexibility. Suppose that you don’t have a testamentary trust, and each teenaged-child receives one-half of your estate. One of the children contracts a disease and incurs substantial medical bills, eating up her share of the estate. Now, if that child decides to attend college, she has a hard time paying for it. But if a trust exists, the trustee has some discretion in how to distribute the assets. The trustee could use trust property to pay for the medical bills and still help that child pay for college. Your first thought might be, “That doesn’t seem fair to the other child.” But if you and your spouse were alive, you most likely wouldn’t say to the child that got sick, “Well, since you contracted this disease, we aren’t going to help you with college. That just wouldn’t be fair to your brother.”

Here to help

During your consultation with me, these are the sorts of things we talk about. I’m here to help take care of your loved ones.

–Joel Dendiu