Changing Your Name in Indiana

Where and what to file?

If you live in Indiana and want to change your legal name, you must file a petition in the Circuit Court (not Superior Court) of the county where you reside. The petition must contain various information, such as your date of birth, your driver’s license number, your address, etc. The petition must also be sworn under the penalties for perjury and notarized.

Notice

Notice of the petition—including the date on which the court hearing regarding your name change will take place—must be published in the newspaper for three consecutive weeks. This is to ensure that any interested parties (for example, creditors) may attend the hearing if they would like. The law does not take kindly to you changing your name in order to attempt to dodge any debts you may have.

What comes next?

After notice of the petition has run in the newspaper, the court must be provided with proof of that publication. Once that has occurred, the hearing may take place. Anyone can attend the hearing and voice his or her objections to your name change to the judge. While it isn’t common for there to be objections in the case of an adult name change, the name change of a minor could create some controversy, especially if one of the biological parents does not consent. The judge will consider all of the objections and make a determination on the petition. If the judge grants your petition, she will send a copy of the decree to the state department of health and to the local health department of the county. That completes the process.

Possible hiccups

While getting a name change is fairly straightforward, there can still be hiccups, and the various systems (for example, having the notice published in the newspaper) may be difficult to navigate. I’m available to help and make the procedure as smooth as possible. If changing your name (or your child’s name) is something that you’re interested in, please call or email me to discuss. I look forward to hearing from you!

–Joel Dendiu

Giving Gifts in Indiana

Giving gifts

You might think that the government has no interest in you giving gifts to, say, a family member or friend. You would, however, be wrong. Under certain circumstances, if you give a gift—defined as any transfer to an individual where full consideration is not received in return—the IRS requires that you file a gift tax return for the year that the gift was given. Certain gifts—e.g. gifts to a spouse, gifts under a certain amount (explained more below), and/or gifts to a political organization—are excluded. Additionally, charitable contributions are treated differently. But otherwise, gift giving may give rise to an obligation to file a gift tax return.

Why does the government care?

Part of the government’s motivation for requiring gift tax returns is to prevent you from getting around the estate tax. When your property passes at your death, the government, under certain circumstances, gets a cut. That means the government doesn’t want you giving away a huge chunk of your property right after you receive a bad medical diagnosis. By requiring you to file a gift tax return, the government can keep track of how much you have given away during your life.

As things currently stand, however, actually paying taxes on a gift that you give probably isn’t something that you have to worry about. This is because the estate tax and the gift tax are, in a way, linked. And the federal estate tax currently has an exemption of $5.43 million. That is, when you die, so long as your estate (and the gifts that you’ve given) is less than $5.43 million, your estate won’t pay any taxes. That means that you could, potentially, give up to $5.43 million of lifetime gifts and not owe any tax.

Examples

Some examples will help:

Example 1

  1. Joel gives $100,000 to his son in 2015.
  2. Joel dutifully files a gift tax return in April, 2016, letting the federal government know that Joel gave a $100,000 gift.
  3. Joel dies in May, 2016, leaving an estate of $6.33 million.
  4. The federal government exempts the first $5.43 million, leaving $900,000 to be taxed.
  5. The federal government also notices that Joel gave $100,000 in 2015 to his son. Instead, therefore, of only $900,000 being taxed, $1 million ($100,000 plus $900,000) will be taxed.

Example 2

  1. Joel gives $100,000 to his daughter in 2015.
  2. Joel dutifully files a gift tax return in April, 2016, letting the federal government know that Joel gave a $100,000 gift.
  3. Joel dies in May, 2016, leaving an estate of $200,000.
  4. The federal government exempts the first $5.43 million, leaving nothing to be taxed.
  5. The federal government also notices that Joel gave $100,000 in 2015 to his daughter. Joel is still well below the $5.43 million exemption, leaving nothing to be taxed.

Example 3

  1. Joel gives a $6 million gift to his friend in 2015.
  2. Joel files a gift tax return in April 2016, letting the federal government know that Joel gave a $6 million gift and paying taxes on $570,000 of that gift ($6 million minus the $5.43 million exemption).

Filing even though you aren’t paying

As you can see from the examples, unless you have a sizeable estate, paying a gift tax to the federal government is probably not something you have to worry about. But even if you don’t owe any taxes on a gift, if you give a qualifying gift over a certain amount, you must still file a gift tax return. In 2015, the amount is $14,000 to any individual. So if I give $15,000 to my son in 2015, I must file a gift tax return even though I don’t have to pay any tax on that $15,000. The federal government still wants to keep track of what I’ve given during my life (just in case I end up with a sizeable estate when I die). I could, however, give $14,000 to one son, $14,000 to another son, and $14,000 to my daughter, and I wouldn’t have to file a gift tax return. So long as I don’t exceed the $14,000 limit to any one individual, I’m in the clear regarding my filing obligations.

What about Indiana?

I’ve so far said plenty about the federal government but nothing about Indiana. This is because Indiana, not too long ago, got really simple. Indiana repealed its “inheritance tax” (similar to, but not the same as, the federal gift and estate tax) for individuals dying after December 31, 2012. That means you could die with a $10 million estate in Indiana, and neither your estate nor your heirs would owe any tax to the state of Indiana (though remember: the federal government would be a different story).

Confused?

If these seem like the sorts of things you’d rather not lie awake at night thinking about, that’s why I’m here. Estate planning is one of my specialties. Please schedule a consultation with me at your convenience so that I can help you create the best possible plan for you and your loved ones.

–Joel Dendiu

Flat Fees vs. Hourly Billing

Ways attorneys charge for their services

Attorneys charge for their services in a number of ways: by the hour, by the service, on a contingency basis, by percentage fees, or some sort of mixture. I mostly do “by the service” (that is, flat fees). There are a number of reasons for this. First, billing by the hour doesn’t work for me. I’m not saying that it doesn’t work at all, just that it’s not a good fit for my personality. A large portion of my life has been about completing high-quality work in as quick of a fashion as possible. I enjoy free time, and being efficient in my work gives me more opportunities to do things that I really like. If you’re afraid this means that I won’t pay very close attention to your legal matter, don’t be. My track record (valedictorian of Mishawaka High School, valedictorian of Bethel College, top 5% of my class at Notre Dame Law School) demonstrates that even though I work quickly, I work well.

There’s nothing wrong with hourly billing

Please don’t misunderstand me: there is nothing wrong with attorneys that bill by the hour. I have known and do know plenty of exceptional lawyers that almost exclusively employ hourly billing. As I already stated, it simply doesn’t work for me, while flat fees do. And I think you’ll find that being charged flat fees will work pretty well for you, too. Flat fees let you know upfront what a legal solution will cost you. That’s what you are really interested in and what you are really purchasing from me: a legal solution. You don’t care whether it takes me 1 hour or 100 hours. If the legal solution that I can provide you with is worth the quote I give you, then you’ll hire me. That’s how you do it with other service providers. Your dentist tells you, “I can fix that pain in your tooth for $2,000.” You think, “Can I live with the pain?” If the answer is no, you pay your dentist the money. Why should it be any different when you talk with me?

Let me absorb the risk, not you

Flat fees also mean you don’t absorb the risk for things that are out of your control. Perhaps you hire me to help you with a divorce. If the attorney for your spouse makes life difficult for me—say, by only providing me with print copies of a proposed divorce settlement instead of electronic copies—you still pay the same price. With hourly billing, you’d pay more because it would take me longer to make changes to the printed copy. How is that fair to you? I don’t know exactly how many hours your divorce is going to take me—just like you don’t—but I certainly have a better idea than you do. I should be the one absorbing the risk for unforeseen circumstances, not you.

An example of how bad things can be

I’ll leave you with an actual timesheet from an attorney that was submitted to a court as evidence of attorney fees. Again, please know that I’m not harping on lawyers who bill by the hour. There are great and fair attorneys who keep track of their time in six-minute increments. But please also know that you’ll never see anything like the following from me…

–Joel Dendiu

Sample Time Sheet_Page_1

Sample Time Sheet_Page_2

 

Legal Separation vs. Divorce

What is a legal separation?

If you are considering filing for divorce but aren’t yet ready for something “final,” you might want to think about filing for legal separation. Under Indiana law, a legal separation operates almost exactly as a dissolution of marriage (a divorce) but in a temporary fashion. If the judge finds that conditions in or circumstances of the marriage make it currently intolerable for both parties to live together and that the marriage should be maintained, then the judge will decree a legal separation between you and your spouse. The decree may last a maximum of one year. The decree can contain any orders that could be included in a decree of dissolution (a divorce) such as child custody, child support, maintenance, protective orders, and so on, but such orders may only last up to one year.

How is a legal separation different from a divorce?

A divorce, on the other hand, is final and permanent. To enter a divorce decree, the judge must find that your marriage is irretrievably broken. Once the judge enters such a decree, there is no going back short of getting remarried.

Legal separation, therefore, can be used as a sort of testing or cooling-off period. Perhaps you and your spouse simply need some (legally enforceable) time apart to figure things out. Please contact me if you are considering filing for a legal separation or a divorce. I can help you decide which course of action is best and guide you through the entire process.

 

–Joel Dendiu

Indiana Small Claims Court

When you can use Small Claims Court

If you believe that you have a legal claim against a person or party (for example, a business or corporation) that is less than $6,000, you may consider filing that claim in Small Claims Court. Small Claims Court has several advantages over filing in “upper court” (Superior or Circuit Court):

 

  1. The filing fees and court costs are usually lower.
  2. The rules of procedure and evidence are relaxed.
  3. The whole process usually takes less time.

 

There are, however, potential disadvantages to filing your lawsuit in Small Claims Court. As the person initiating the lawsuit, you waive your right to a jury trial. This isn’t always a disadvantage, but if you feel that you have a “sympathetic” claim, it’s possible that a jury would be on your side more than a judge would. The person defending the lawsuit has the opportunity to request a jury trial. Such a request moves the claim from Small Claims Court to “upper court.” While, again, this isn’t necessarily a disadvantage, it creates an extra step that can be both confusing and cost time. Finally, the relaxed rules of procedure and evidence can be a double-edged sword. On the one hand, it makes preparing for the hearing/trial easier for you. On the other hand, those rules exist to provide order; without those rules, it’s easier for the person defending against the claim to create chaos.

 

Should you get an attorney?

 While you don’t need to hire an attorney whether you are initiating or defending a lawsuit in Small Claims Court, hiring an attorney is certainly something you should consider. There are still rules and procedures. Documents must be drafted and sent to the opposing party. If you win your claim and receive a judgment against the opposing party, you still have to collect on that judgment. The court will not automatically dip into the other person’s checking account—if the other person even has a checking account—and pay you what you are owed. I can take care of all of this for you. For a flat fee, which I will provide you with ahead of time, I’ll initiate or defend a lawsuit for you in Small Claims Court (or even in “upper court”).

 

Serious business, serious help

 In a way, Small Claims Court is less “severe” than “upper court,” but Small Claims Court is still very serious business with potentially serious outcomes. Use me instead of tackling it on your own. That’s what I’m here for. I look forward to hearing from you.

 

–Joel Dendiu

What’s Involved in the Probate Process?

The “probate process”

The phrase “probate process” usually refers to the legal process of administering the estate (that is, the property) of a deceased person. If a person dies and has a legally valid will, her property will be distributed according to the will and according to Indiana law. If a person dies without a will, her property will be distributed according to a certain formula (created by Indiana law). For example, if the person has a spouse but no living parents or children, the spouse receives 100% of the net estate. If the person has a spouse but no children and a living parent or parents, the spouse receives 75% of the net estate, and the parent or parents receive 25% of the net estate. And so on.

This seems simple enough. Why, then, is the court system involved? And why are attorneys hired to help with the administration? First, the court system is used to verify that a person’s will is actually her will. A legally valid will must, among other things, be signed by the testator (the person making the will) and “witnessed” by at least two other people, who also sign the will. The person named as the Personal Representative—the person who will “carry out” the will—of the will submits the will to the court for verification. Once the court has verified the will, the court issues “Letters Testamentary” to the Personal Representative. This is a legal document that gives the Personal Representative power to do things with the deceased person’s property (for example, distribute the property to heirs under the will).

Making sure that everyone receives her share

Second, the court system is involved to ensure that each party receives what she should according to the will and according to Indiana law. In a world in which wills were not filtered through courts, someone could name you in her will, but you might never receive your share because there is no one to oversee the distribution process. The court system also helps to ensure that creditors of the deceased person are paid appropriately. While you might consider this unfair—why should creditors reduce the amount of money that you get under the will?—it helps to think of creditors as not only big banks and corporations. Perhaps you loan $5,000 to your friend Bill, and Bill promises (in a signed document) to pay back the $5,000 at 5% interest over five years. Bill, tragically, dies after the first year. You call Sue, Bill’s Personal Representative under Bill’s will, and request your money. “Sorry,” says Sue. “Bill’s will left everything to his dog, Rover. There’s nothing left for you.”

Why attorneys?

You wouldn’t think the above situation fair, and rightly so. That’s part of the reason that one of the pieces of the probate process includes notifying the deceased person’s creditors to make sure that everyone gets what is coming to her. Additionally, if creditors didn’t get paid when someone died, someone in her 90s could never get a loan, for why would a creditor take a risk like that? And this notification of creditors helps, finally, to explain what role attorneys play in the probate estate administration process. Making sure that creditors are notified is only one of the many moving pieces of the probate process: all of the heirs must be contacted; all of the deceased person’s property must be located, collected, and maintained; a checking account should be opened in the name of the deceased person’s estate in order to pay for expenses and also to receive cash from liquidated assets, and so on.

Why Mishawaka Law?

That’s where I come in. When you, the Personal Representative under a will, hire me to guide you through the probate process, I’ll help you navigate the legal system and carry out the final wishes of your loved one. Experiencing the death of someone close is difficult enough. Allow me to take away the potential headache that comes with being named as Personal Representative. When you retain me, I’ll make the probate process as seamless as possible.

I look forward to hearing from you!

–Joel Dendiu

Welcome to Mishawaka Law!

Mishawaka Law is open and ready for business! I’m here to help with your legal issues, whether that be drafting a will, managing the administration of a probate estate, filing for a divorce, or petitioning for an adoption. This is just a sampling of the things that I can assist you with.

Please contact me, via phone (574.514.3566) or email (joel@mishawakalaw.com), regarding your situation. I’ll provide you with a flat-fee quote to handle your matter. This is the fee that you will pay no matter how many hours I spend on your case and no matter how many times we talk on the phone. You pay, and you are done. I take the problem out of your hands and provide a solution.

I look forward to hearing from you!

–Joel Dendiu, Attorney