Does a Grisly Past Require Disclosure? (A Special Spooky Halloween Post)

I came across this interesting article discussing what is required in real estate disclosure.  The question posed is whether a murder (or other similarly distasteful occurrence) are required to be disclosed by sellers to buyers in a real estate condition report or other, similar documents.

Believe it or not, I’ve had a client who needed to sell a property where something like this happened.  In Wisconsin specifically, a real estate condition report is required to be given to a buyer pursuant to section 709.02 of Wisconsin Statutes. Generally, a seller must disclose any “defects” that they are aware of.  A defect means a condition that would have a significant adverse effect on the value of the property; that would significantly impair the health or safety of future occupants of the property; or that, if not repaired, removed or replaced, would significantly shorten or adversely affect the expected normal life of the premises.  The question is whether a murder on the property, for example, would have a significant adverse effect on the value of the property.

In my opinion, the question is fact specific, and is a hard one to answer.  Certainly, to some people, they would not buy the property at any price if they knew something like that happened on the property.  Others probably wouldn’t care.  This also raises another question: Where do you draw the line?  Is a murder the only thing that would need to be disclosed?  If the murder was widely publicized or particularly brutal, does that change things? What if a prior owner was arrested for child pornography? Domestic abuse?  Drug manufacturing?

If there is no physical damage to the property that would impair its value, and there was nothing concrete to indicate that the future value of the property would be impaired by the past actions, it is my opinion that the real estate condition report does not require disclosure in Wisconsin.  I’m not aware of any appellate or supreme court cases in Wisconsin have dealt with the specific issue.  Of course, if the buyers specifically ask the question, then the sellers need to answer honestly.  Additionally,  it’s not a bad idea for sellers to err on the side of caution and disclose anything that might be an issue up front.  Honesty is always the best policy.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Want A Life Estate? Do it NOW

There has been a lot of discussion amongst ourselves here at Lubinski, Reed & Klass, S.C. and among other elder law attorneys, around the State as to how best advice our clients interested in planning for nursing home assistance in light of the changes to estate recovery in Wisconsin. How these new rules affect one of the more popular planning tools in medical assistance, life estates, has been a major topic.

The State of Wisconsin Department of Health Services has released a memo indicating that, amongst other things, life estates created ON OR AFTER August 1, 2014 would be subject to Estate Recovery.  Generally, this means that the State will value the life estate as of the date of death of the life estate holder and be reimbursed for the medical expenses it paid of behalf of that person and/or that person’s spouse up to the value of the life estate.  As the memo is written, this rule will not apply to life estates created before August 1, 2014.

There is a small window of opportunity for people that wish to make a gift of their home and retain the right to live there by using a life estate, without this new recovery rule applying.  There are still many unanswered questions regarding these estate recovery rules.  A life estate is not a good plan for everyone.  If you are interested in looking into this further, contact an experienced elder law attorney as soon as possible.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Pursuant to the rules of professional conduct set forth in Circular 230, as promulgated by the United States Department of the Treasury, nothing contained in this communication was intended or written to be used by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer by the Internal Revenue Service, and it cannot be used by any taxpayer for such purpose.  No one, without our express prior written permission, may use or refer to any tax advice in this communication in promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any other party.

Tattoo Comes Back to Haunt Accused Murderer

I can see why this man might be interested in tattoo removal.  Every mother ever has told a child considering a tattoo: “Is that something that is going to look good when you are 80?”  Or “How is that going to look at a job interview?”  I’m not sure many have asked: “How is the jury going to view that at a murder trial?”

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Pursuant to the rules of professional conduct set forth in Circular 230, as promulgated by the United States Department of the Treasury, nothing contained in this communication was intended or written to be used by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer by the Internal Revenue Service, and it cannot be used by any taxpayer for such purpose.  No one, without our express prior written permission, may use or refer to any tax advice in this communication in promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any other party.

 

Maybe Lawyers Aren’t So Useless After All

A question I get rather frequently is: “Can’t I just go online and do this myself?  Why should I pay you to draft my will?”  If you have this thought, I encourage you to read this article.

If you personally don’t understand the law regarding wills, and how precise language can completely change your intent, then printing a form off of the internet is a bad idea.  Saving money in attorney fees now can cost your loved ones much more in the future.  It pays to make sure that someone who knows how to draft a will does it correctly.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Pursuant to the rules of professional conduct set forth in Circular 230, as promulgated by the United States Department of the Treasury, nothing contained in this communication was intended or written to be used by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer by the Internal Revenue Service, and it cannot be used by any taxpayer for such purpose.  No one, without our express prior written permission, may use or refer to any tax advice in this communication in promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any other party.

 

Out of Control Teenager? Or Victim?

This case currently going on in New Jersey raises interesting questions about what happens when a parent/child relationship goes sour.  While parents have the legal duty to support their children, does the duty remain if the child leaves the home and refuses to follow rules?  Would the ruling change if the child was a gang member and not an honor student?

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Pursuant to the rules of professional conduct set forth in Circular 230, as promulgated by the United States Department of the Treasury, nothing contained in this communication was intended or written to be used by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer by the Internal Revenue Service, and it cannot be used by any taxpayer for such purpose.  No one, without our express prior written permission, may use or refer to any tax advice in this communication in promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any other party.

Pregnant Texas Woman Kept Alive Against Her Wishes: Why You Need a Health Care POA

There is a very sad situation occurring in Texas.  A pregnant woman had a blood clot in her lung and collapsed.  The details are a little unclear, but according to the woman’s family, doctors are keeping her alive on life support against her wishes because she is pregnant.  As I said, it is unclear what her medical status is, if, as the family claims, she is actually in a persistent vegetative state.  It is also unclear if her wishes are in writing pursuant to a valid Health Care Power of Attorney (HCPOA) or simply oral.

What I can tell you is that the law being discussed in the article also exists in a similar form in Wisconsin.  Essentially, unless you have a valid, written, HCPOA that contains language that specifically allows your agent to make decisions for you when you are pregnant, a medical facility in Wisconsin cannot end life support.  A medical facility could potentially be prosecuted for death to an unborn child if they do.

Regardless of your opinion on the issue, you should discuss it with your attorney and have it properly drafted to meet your wises.  If you don’t, your life, and the life of your unborn child could be prolonged against your wishes.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Pursuant to the rules of professional conduct set forth in Circular 230, as promulgated by the United States Department of the Treasury, nothing contained in this communication was intended or written to be used by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer by the Internal Revenue Service, and it cannot be used by any taxpayer for such purpose.  No one, without our express prior written permission, may use or refer to any tax advice in this communication in promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any other party.

 

Do You Know Where Your Land Is Going When You Die?

Do you know how your jointly-held real estate is titled?  I think if I surveyed 100 clients, 90 of them would have no idea.  It is not uncommon that someone wouldn’t know the answer to the question, especially if they have not used an attorney in a real estate transaction before.  I can’t tell you how many times a client didn’t know that there was more than one way to hold title to jointly owned real estate.  Mostly, an option is never presented if an attorney is not handling the transaction.

If you own property with a spouse, real estate is typically owned as “survivorship marital property”.  This means that when one spouse dies, title passes to the survivor.  A simple form would be filed with the register of deeds in the county where the land is located to remove the decedent from the title.  This is fairly standard and obvious, and not really the point of this article.  The issues that occur in joint ownership occur when the owners are not married.

If you own real estate with a non-spouse, there are two ways in which property is typically held.  One is as “Tenants-in-Common”.  If two owners have own real estate as Tenants-in-Common, each owns an undivided one-half interest in the property.  When Owner A dies, his/her one-half interest will pass pursuant to his/her wishes (typically via will or intestacy).  The surviving owner, Owner B, will continue to own his/her one-half interest with the new owners owning the other one-half.

The second common way jointly owned real estate is typically held is “Joint Tenancy”.  Here, if there are two owners that hold property as joint tenants, when Owner A dies, his/her interest will pass to Owner B.  This is accomplished exactly like the survivorship marital property example above.

There are positives and negatives to these forms of ownership, and I have not addressed the majority of them in this post.  Be certain that you have a plan if you decide to purchase real estate with another person, especially if that person isn’t your spouse.  You need to know the consequences of your form ownership before it is too late.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Pursuant to the rules of professional conduct set forth in Circular 230, as promulgated by the United States Department of the Treasury, nothing contained in this communication was intended or written to be used by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer by the Internal Revenue Service, and it cannot be used by any taxpayer for such purpose.  No one, without our express prior written permission, may use or refer to any tax advice in this communication in promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any other party.

Facebook After Death in Wisconsin

Many states have laws that would treat a decedent’s Facebook page (or similar online account) as a digital asset to be controlled by the personal representative of a person’s estate.

In considering those laws, I became curious as to how this issue would be handled right now in Wisconsin.

Although I don’t believe Wisconsin has dealt with this issue specifically, it seems to me that the probate statutes already give the personal representative the power to manage a decedent’s online accounts.  Online accounts are not distinguishable from other “property” as defined by statute, and the personal representative is tasked with collecting, managing and distributing all of the decedent’s estate.  Similarly, even if probate was unnecessary due to the size of the decedent’s estate, a special administrator could be given the same authority.  I think the difficulty will be in dealing with the company that hosts the account.  It also raises the question of whether a digital account of a Wisconsin resident is even Wisconsin property in which the courts would have jurisdiction to deal with.  I imagine the terms of service on these accounts (i.e. that million word thing that nobody reads that you are presented with when you sign up) would give some guidance.

Even though an online account such as a Facebook page probably doesn’t have actual monetary value (except perhaps in the case of a business page) the contents of the account could certainly have emotional value to the decedent’s family similar to a photo album or a diary.  It will be interesting to see how this law shifts in the future, and whether Wisconsin will pass similar laws specifically targeted at online assets.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Pursuant to the rules of professional conduct set forth in Circular 230, as promulgated by the United States Department of the Treasury, nothing contained in this communication was intended or written to be used by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer by the Internal Revenue Service, and it cannot be used by any taxpayer for such purpose.  No one, without our express prior written permission, may use or refer to any tax advice in this communication in promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any other party.

To Each Their Own

They say, “Love what you do, you’ll never work a day in your life.”  If there is a statute of limitations on that phrase, this man in Maryland is certainly approaching it.  I really like what I do, but I can’t fathom wanting to do it until I was 96 years old. (Or living that long to be able to.)

http://www.your4state.com/story/96-year-old-lawyer-continues-to-work-full-time/d/story/JmT3GeKqik-dJ-KX9ta4KA

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Pursuant to the rules of professional conduct set forth in Circular 230, as promulgated by the United States Department of the Treasury, nothing contained in this communication was intended or written to be used by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer by the Internal Revenue Service, and it cannot be used by any taxpayer for such purpose.  No one, without our express prior written permission, may use or refer to any tax advice in this communication in promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any other party.

Guilty Until Proven Innocent?: An Example of Why That Is A Bad Idea

A recent article in the St. Louis Post-Dispatch details the issues happening in the city of St. Louis relating to people being wrongfully arrested and detained.  When people question the criminal justice system, and ask why “criminals” have rights to defend themselves, I think this article provides at least one of the answers.  Mistakes happen.  It seems far-fetched that police would arrest the wrong person and hold them in jail despite protest. However, human error, and the financial crunch that police departments and the court systems find themselves in can lead to these issues.  Many of these people were released within a few days when a mistake was recognized.  Some of these people were held much longer.  These issues happened while important constitutional safeguards against those accused of crimes are in place.  Imagine what could happen if there were no right to defend yourself?  Police and prosecutors are typically very good at their job, but mistakes can be made.  Someday, that mistake could affect you or someone you love.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Pursuant to the rules of professional conduct set forth in Circular 230, as promulgated by the United States Department of the Treasury, nothing contained in this communication was intended or written to be used by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer by the Internal Revenue Service, and it cannot be used by any taxpayer for such purpose.  No one, without our express prior written permission, may use or refer to any tax advice in this communication in promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any other party.