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The Dangers of Using Online Form Wills

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At VKBAR, PLLC we often hear clients ask, “Why can’t I just use an online form Will to make this easier?”

The truth is, if you use an online form Will, it might hold up legally and be perfectly fine. But there’s also a strong chance that it might not. The danger of this happening is simply too great and the consequences too severe for it to be wise to take this path. 

One major issue is that online form Wills often claim to be state specific even when they are not. Since every state has its own set of requirements and regulations for Wills, this becomes a major issue. An online form Will that works in Arkansas may not get the job done in Georgia and vice versa. In Tennessee, we have very strict rules about what a Will must provide, making the use of online form Wills particularly concerning here.

Another issue, is that often form Wills don’t offer away for you to express the specifics of all of your wishes, especially if your estate plan is more complex or in any way unusual. 

The greatest danger of using an online form Will is that no one will realize it doesn’t work until it is too late. You can leave your loved ones in a really tough situation if the way in which you expressed your final wishes does not stand up legally. They may have to endure a lot of stress and expenses in order to make sure things are done in the way you wanted, or they may, unfortunately, be unsuccessful in this, leaving your estate to be divided and distributed via probate court in accordance with intestate law. 

Doesn’t sound like the path you want your estate to take after you pass away? We didn’t think so! That’s why we think it’s so important to forego online form Wills, and instead create your Will and other estate planning documents with an experienced attorney.

Who can help?

At VKBAR, PLLC, we have extensive experience in many areas of law including estate planning. We believe that a strong estate plan, including a strong Will, can give you peace of mind that your wishes will be respected after you pass away and that what you have worked hard for in life will continue to benefit your loved ones after your death. If you have questions about our services or if you are ready to get started, give us a call at (615) 321-5659.

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How to Approach Your Spouse About a Collaborative Divorce

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More and more people who come to our office after deciding their marriage has reached its end want to avoid the additional financial and emotional cost of a traditional divorce. There are good options.  If you’ve learned about collaborative divorce and think it might be a good approach for you and your soon-to-be-ex, make sure you approach them in a way that allows them to really appreciate the things that make collaborative divorce different. An initial consultation will include suggestions on how to talk to your spouse about a collaborative divorce. 

Do your research.

Become as knowledgeable as possible about what you are proposing before you bring it up. If your spouse is completely new to the idea of a collaborative divorce, he or she will likely have many questions. We will provide you with resources to help you talk to your husband or wife. Our website has lots of information about the collaborative process; it is ok to let your spouse see it!

Schedule an Information Session.  

A collaborative lawyer does not represent both sides and can’t give legal advice to a party who may be on the other side of a case. We can, however, give both sides information about various approaches to divorce, including collaborative, without giving legal advice or hearing confidential information. Feel free to schedule a joint informational session with your spouse, if that would be helpful.

Let Us Invite Your Spouse to Collaborate.

Some clients think it is helpful if we send a letter or email to their spouse to explain what the collaborative approach is and how it might be helpful in their situation. Let us know if that would be a good idea in your case. 

Explain the financial advantages.

Courts and litigation proceedings are expensive. Make sure your spouse clearly understands that a collaborative divorce can save you both time and money.

Tell your spouse what attracts you to collaborative divorce.

Is it the chance that it gives you an opportunity to talk things out in a comfortable, respectful environment? Is it because you want a more efficient problem-solving approach to your divorce? Are you looking for a process that addresses the unique needs and interests of your family? Do you want to avoid a process that makes it harder to co-parent after the divorce? Is it because it protects your privacy and you want to stay out of court? Let your spouse know what appeals to you, personally, about choosing collaborative divorce over traditional divorce and why it might work best for them.

Listen to their thoughts and opinions. Understand that you have to both agree to it in order for it to happen.

A collaborative divorce can’t work if both sides aren’t willing to collaborate. Understand that no matter how badly you want to divorce this way, it can only happen if your spouse agrees. We will help you think about how to talk to your husband or wife. 

For more information about collaborative divorce or to get started, call our offices at (615) 321-5659. Attorney Irwin Kuhn has extensive experience with collaborative divorce and is eager to work with you.

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What You Need to Know About Conservatorships for Your Parents

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Do you have a parent or adult friend who can no longer make his or her own decisions regarding their finances and medical care? Perhaps they’ve experienced a brain injury that left them in a coma, a stroke that impaired normal function or they suffer from Alzheimer’s disease. Financial planners or bank officers also may contact family members if they notice a change in a client’s financial habits. If the parent/client does not have a durable power of attorney in place, or the power of attorney is not being used for their benefit, you will need to ask a court to appoint a conservator in a court-monitored conservatorship proceeding. Becoming a conservator (or asking that a third party become the conservator) gives you the legal ability to help them in ways you could not before and replaces a previous power of attorney which might be exercised by someone who is not acting in the parent’s best interest. 

There are two different functions of a conservator. The conservator of finances handles financial affairs on the incapacitated person’s behalf. The conservator of the person handles healthcare decisions. Both roles can be taken by the same person.  A physician will also have to recommend that the person they have examined needs a conservatorship.

If I become my parent’s conservator, what will I be able to do?

You will be able to:

  • Sell real estate,
  • Manage property,
  • Choose doctors,
  • Choose care facilities,
  • And more.

You will need to file updates with the court about the things you do on behalf of your parent. This is to ensure that you do not mishandle their property. If you do, you can be replaced as conservator and be subject to penalties. 

What if someone else is caring for my parent and I believe they are mishandling funds or mistreating my parents?

Nationally, only 1 out of every 44 crimes against seniors is reported. If you suspect mistreatment of an elderly person, please report it. You can reach Tennessee’s Adult Protective Services at (615) 532-3492. 

Who can help me with a conservatorship-related matter?

If you think your parent needs a conservator and you want to take on these duties, contact VKBAR, PLLC today. The process of becoming a conservator involves a large amount of paperwork and can become very complicated, so it is important to have an experienced lawyer by your side. At VKBAR, PLLC, we pride ourselves on providing our clients with close personalized attention and the highest value. Give us a call at (615) 321-5659 to get started. 

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Understanding the Role of the Financial Professional in a Collaborative Divorce

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The process of collaborative divorce helps couples find creative solutions to the problems they face as they divide their assets and make plans for their lives apart from one another. There are many financial challenges that come along with a divorce and each case is different. The couple must navigate taxes, family support, and fairly dividing the value of real estate and business interests. Emotions can run high when it comes to these very important matters, which is why collaborative divorce relies on the help of a neutral financial professional, who helps in a variety of ways. As the name implies, the financial neutral works for both parties in the divorce process and agrees to work for neither party after the divorce.

The financial neutral is often the key to making the collaborative process efficient. Since one skilled professional gathers all the relevant financial information from both sides, cleints do have to pay two legal teams to do the same thing. 

Educating the clients: Sometimes in a marriage, one party is far more involved in financial management and planning than the other. Sometimes neither party has a solid understanding of their financial position. In these cases, the financial professional educated them so that both parties have a clear, honest understanding of where they stand financially.

Budget development: The financial professional helps the divorcing parties develop reasonable budgets for their lives outside the marriage.

Guiding the couple in discussing their settlement options: Before the couple can reach an agreement, they need to know what their options are. The financial professional helps guide these discussions, providing insightful analysis of each possibility, including the ways they would be taxed.

Financial reports: The financial professional creates financial reports for the divorcing couple and the lawyers. These can serve as the clients’ declarations of disclosure, which is a document required by courts.

Business Valuations: Often it is important to place a value on a family’s business interest. Collaborative financial neutrals are available to collaborative teams to offer such services. 

In most collaborative divorces, the role of neutral financial professional is played by a Certified Financial Planner (CFP) or a Certified Public Accountant (CPA) or Certified Appraisers. They must have no loyalty to either party so that they can guide the couple in a completely neutral, fair manner.

If you and your spouse are ready to work together to find a win-win solution for the end of your marriage, collaborative divorce may be right for you. At Venick, Kuhn, Byassee, Austin, & Rosen, PLLC, we work with clients to efficiently end their marriages, in the least acrimonious way possible. In fact, Attorney Irwin Kuhn was among the first collaboratively trained family law attorneys in Tennessee. If you are interested in working through your family law matter with our Nashville team, give us a call at (615) 321-5659. 

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Living Wills Explained

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At some point during the estate planning process, you’ll likely have to address your final wishes, including what type of lifesaving medical care you want to receive and when you want to be taken off life prolonging care. A Living Will answers many of these questions and allows individuals to legally document their end-of-life healthcare preferences.  This directive will be a great relief to family and friends who care about you.  

Explaining Your Healthcare Wishes and Preferences

A Living Will is also known as an advance directive. Its primary goal is to outline an individual’s wishes regarding end-of-life medical treatment. This document can be used to reflect a wide range of preferences. For example, someone might want all possible lifesaving measures to be used if they are unable to communicate their wishes, while someone else might want to refuse all lifesaving measures if there is no hope of recovery.

Drafting a living Will takes a lot of pressure off of family members. In the absence of an individual’s advance directive, family members have to guess at what type of care they might want. If there are disagreements, they can turn into costly legal disputes that drag on in court. A succinct and legally-binding advance directive provides clear direction to medical care providers.

When Is a Living Will Valid?

A Living Will is only valid for as long as the named individual is alive. The Living Will acts in tandem with your healthcare agent designation allowing the named healthcare agent to make final decisions regarding cremation or other burial options. To be legally valid, a Living Will needs to be notarized or be signed in front of witnesses. A Living Will can be revoked whenever the individual chooses.

A Living Will as Part of Your Estate Plan

It’s important to discuss your estate planning needs with an experienced attorney who can determine exactly which documents are needed to preserve your assets, protect your finances, and enforce your healthcare preferences. A Living Will is an essential part of many estate plans, particularly if there are multiple family members who may be legally permitted to decide when to continue or revoke care. In these situations, a Living Will prevents arguments that divide the family.

However, it’s important to note that a Living Will is not an estate plan in and of itself. While it does specify your medical care preference, it does not allow for management of your finances or outline asset distribution. A Living Will, along with a healthcare agent, power of attorney and  last will and testament or trust, can cover your estate planning needs. 

Estate planning can be overwhelming, but with the right assistance, you can feel confident about your choices. Reach out to VKBAR Law today to schedule a consultation.

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Understanding Attorney Withdrawal

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A collaborative divorce is different from a conventionally adversarial divorce. One of the distinctive features of a collaborative divorce is the attorney withdrawal provision allowing attorneys and clients to approach divorce more like a business deal.

The Withdrawal Provision

When a collaborative divorce begins, both sides sign an agreement that includes an attorney withdrawal provision. That means if the collaborative process fails and the divorcing couple decided to resolve issues in court, they must hire new attorneys to represent them. Sometimes lawyers and their clients do not understand why this is important, but it actually benefits all involved parties significantly.

How the Withdrawal Provision Helps During Collaboration

For the collaborative process to succeed, all parties must be invested in its success, including the lawyers. When clients agree to a collaborative withdrawal provision, they affirm their  commitment to a negotiated settlement. Of course, with withdrawal provisions in place, the divorcing couple becomes more invested in the process because of the potential cost and time involved in hiring new attorneys if they have to go to court. For collaborative attorneys, the only measure of success becomes reaching a good agreement for your client.  

The withdrawal provision also makes it easier for attorneys to focus respectfully on finding win-win agreements. Even though most cases eventually settle, when going to trial is a possibility, lawyers are focused on making their client look as good as possible and the other side as bad as possible. If the same attorneys could be used for collaboration and court, collaborative attorneys would have to think about how information  could be used to hurt or help their client in court.

The withdrawal provision allows both parties and attorneys to be candid and transparent during collaborative discussions and to use their skills finding mutually acceptable solutions and treating divorce as the transaction it is rather than a war to be won. 

What does this mean for my divorce? Although the withdrawal provision can be disconcerting, it benefits both sides and increases the likelihood of success during collaboration. If you want to explore the benefits of collaboration for you or someone you know, contact Irwin Kuhn of VKBAR Law.

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Tennessee Probate Explained

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When a loved one passes away, their estate may need to go through probate. The probate process simply ensures that the decedent’s assets and estate go to the people who are legally entitled to it. An estate must go through probate regardless of whether or not the deceased left a Will. This process may not be necessary if the testator left their assets in a living trust, rather than relying exclusively on a Will.

Which Assets Are Exempt From Probate?

Certain assets may not have to go through the probate process. These assets include:

  • Certain bank and brokerage accounts if a designation made. Individuals may choose to designate a beneficiary for their bank and brokerage accounts. These are also known as “transfer on death” accounts. When the decedent passes, beneficiaries can claim these assets right away.  This designation may either be combined with the power to sign checks or just a gift to take place upon death. These are separate actions with a financial institution.
  • Accounts and policies with designated beneficiaries. Life insurance policies and retirement accounts should have named beneficiaries. The funds in these accounts are typically exempt from probate and can be claimed immediately if a designation has been made.
  • Real estate with right of survivorship. If the testator was married at the time of death, their spouse automatically takes ownership of some types of real property (and joint bank accounts) if the property was in joint names. 
  • Joint tenancy assets. When two people are named owners of an asset and one passes away, the other takes full ownership without the asset going through probate 

General Probate Process

The probate process in Tennessee is fairly straightforward. Someone must file the decedent’s Will with the county in which they lived attached to a petition for probate with the court. The executor named in the Will will be granted personal representative rights. If there is no Will, the Will doesn’t name a personal representative or the executor names doesn’t want to serve, the court appoints someone.  If there is no will a relative, heir or creditor may file a petition to open an estate as an “intestate” estate. In an intestate estate the petitioner qualifies as an administrator of the estate and has similar responsibilities as an executor.  

Once the petition is received, the executor must notify all heirs and beneficiaries that the estate is going through probate. There will also be a publication in the paper for creditors of the estate and the creditors have four months from the date of publication to file their creditor claims against the estate.  The executor must send notices of the opening of the estate to known creditors. Within 60 days, the personal representative must inventory the decedent’s assets and submit the inventory to the court. Unless specifically waived in the will a bond may be set by the court to ensure proper administration of the estate.  Unless waived in the will or agreed to be waived by the heirs, an accounting must be filed to the probate court of all the assets taken into the estate and all expenditures (along with a description of the expenditure and copies of the checks and statements of the bank account of the estate) made out of those assets on behalf of the estate.  

After all of the debts owed by the estate have been paid (after the four-month period for creditors’ claims has passed) —as well as the testator’s state and federal taxes, if necessary—the executor upon making a final approved accounting to the court can distribute assets to heirs and beneficiaries. 

All in all, this process typically takes at least six months and may take multiple years, depending on the complexity of the estate and the accuracy of the decedent’s records. Do you have to oversee an estate through the probate process? Instead of taking on this task on your own, turn to VKBA&R Law. Contact us today at 615-321-5659 to discuss your legal needs.

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5 Benefits of Choosing Collaborative Law to Resolve Divorce

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When a marriage ends, anger and hurt is a natural response. No matter who’s to blame or what factors contributed to the divorce, it’s normal to lash out—but this is one situation where you should take a deep breath, take a step back from the situation, and think about what really matters to you. For many divorcing couples, a collaborative divorce is much more peaceful and respectful than a traditionally litigated divorce. Read on to learn how.

1. Maintains Decision-Making Power

When you and your spouse choose to collaborate, you decide to treat your divorce more like a business deal than a battle to be won. You and your spouse decide what give and take makes the most sense for the two of you. If you go through the litigation process and end up in trial, the judge decides how you’ll divide property, how parenting time will be split, and which financial obligations each party absorbs. When you choose to resolve things through the collaborative process, you and your spouse maintain control. Your collaborative lawyers will guide you to make sure your agreements meets the requirements of the law.

2. Lays the Groundwork for a Healthy Co-Parenting Relationship

Life goes on after divorce, and the hurtful decisions made in the heat of litigation can damage your co-parenting relationship for years. If you and your ex-partner have children together, you owe it to them to get along as much as possible. Setting aside your hurt feelings and deciding to work together during divorce can help you learn to work together as co-parents.

3. Minimizes Animosity

The focus of the traditional divorce process is the day of trial. Lawyers want to be prepared for the court battle, even if the vast majority of cases never reach that point. That usually means getting ready to make the other side look as bad as possible. That is a process with a great chance of permanently damaging the relationship between people who, no matter what, will be a part of each other’s lives until death do they part. Going to court is off the table in the collaborative process so the focus is on finding solutions that work best for both parties. The level of animosity and future stress declines when both parties are treated with dignity and respect.

4. Protects Your Privacy

If privacy is a top concern for you, collaborative divorce is a good choice. Business people, professional athletes, entertainers, other with high profiles, and just ordinary couples who value their privacy have chosen the collaborative route to keep their private business out of the public spotlight. In a collaborative case, the only documents in the public file are the bare minimum required by law, a divorce request on no-fault grounds, routine notices, and the divorce agreement made by the parties.

5. Can Reduce Expenses

Perhaps one of the main benefits of a collaborative divorce is the fact that it is efficient and because of that is often much less expensive than lengthy litigation. When a divorce case moves toward trial, pretrial motions, lengthy written discovery, document production, and depositions coupled with lots of back and forth between layers can draw out the case and add thousands to your legal bill. In a collaborative case, the parties often together hire a neutral financial expert to gather all the essential information needed to help them and their attorneys make decisions about dividing their assets and liabilities. Both parties are expected by court rule to make “full, candid, and informal disclosure of information without formal discovery” That information is put together for both parties by the financial neutral rather than two teams of lawyers and paralegals in separate offices. It saves lots of time and money in that way.

Divorce is never easy, but the right legal support can make it as stress-free as possible. If you’re ready to explore your options, call Irwin Kuhn of Venick, Kuhn, Byassee, Austin & Rosen, PLLC and set up a consultation. We’ll help you compare your options and prepare you for a smooth transition to your post-divorce life.

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Understanding the Difference Between Conservatorships and Guardianships

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Tennessee law strives to provide for vulnerable individuals through conservatorships and guardianships. In a conservatorship or guardianship agreement, the court takes away some of the individual’s rights and awards them to a capable conservator or guardian. Depending on the individual’s age and needs, the court may award control of finances, healthcare decisions, living arrangements, and daily care decisions. Although these care arrangements are similar, there are significant differences between guardianships and conservatorships.

Age of the Individual

The primary difference between a guardianship and conservatorship is the age of the individual protected. Guardianships are used for individuals under the age of 18. Conservatorships serve adults who the courts have determined to need assistance in life choices or health or finances.

Who Can File?

The process for initiating the process is the same for guardianships and conservatorships. Anyone who knows the circumstances of the individual can file a petition asking the court to assign a guardian or conservator. Family members are preferred. Paperwork must be filed in the county where the individual in need of care lives. 

Assessment

Once the process has started, the court goes through slightly different assessment processes for guardianships and conservatorships. If someone has requested a conservatorship, the ward must be medically evaluated by a physician or mental care practitioner, depending on the circumstances leading to the request for a conservator. In both cases, the court looks at the facts presented in the petition and may appoint a temporary guardian ad litem to act in the individual’s best interests.

Assigning a Guardian or Conservator

In both cases, a hearing will take place to determine whether or not the person in question needs a guardian or conservator. In a conservatorship case, the court determines whether or not the individual is considered disabled and if a conservatorship will protect the person’s health and assets.

If the court decides that a guardianship or conservatorship is necessary, they will appoint a responsible person or agency to act in that role. In a conservatorship case, preference is given to a person named by the individual, the individual’s spouse, or the person’s child. In a guardianship, preference is often given to one or both parents, someone designated by the parents, or adult siblings of the child.

Termination of the Guardianship or Conservatorship

In many cases, conservatorships last for the duration of the ward’s life. If the ward has a temporary disability, the conservatorship may be terminated once a medical exam indicates that the individual is capable of making their own decisions. A guardianship terminates when the child turns 18 years old. If the child is disabled, the guardian may request to become a conservator.

If someone you love needs a conservatorship, working with a lawyer can help you preserve the individual’s rights and get a conservator who can act in the ward’s best interests. Reach out to our team today to schedule a time to discuss your legal needs.

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4 Reasons It’s Important to Be Flexible in Mediation

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Mediation is almost always required before trial in family law cases in Tennessee. For good reason, while litigation often leaves one winner and one loser, mediation focuses on finding win-win solutions and, with hope, helps preserve relationships and lay the groundwork for future co-parenting efforts. Mediation is also a lot less expensive than trials. It’s important to go into mediation with an open mind and a willingness to be flexible both about the issues in dispute and the way to resolve them—doing so leads to better outcomes for both parties.

  1. Accommodates Changing Circumstances

Flexibility allows you to get closer to a win-win solution. As you and the other party discuss different aspects of your case, you may find that you’re willing to compromise in certain areas and concede to the other party’s wishes in other areas. Staying rigid encourages friction, while flexibility keeps you open to other solutions.

  1. Saves Time

When both parties and their attorneys remain flexible about the mediation process, it can move much more smoothly. A skilled mediator will adjust their techniques to suit the unique needs of the parties involved, and following the mediator’s recommendations can often lead to a more peaceful resolution in less time. While many attorneys are most comfortable with shuttle mediation when both parties are kept in separate rooms and the mediator communicates with each party separately, it’s important to be open to other styles of mediation. If you and the other party are willing to sit down at a table and calmly discuss some of the issues at hand, you may wrap up some of the less difficult issues more quickly. This frees up more time to hash out tough issues like custody, spousal support, and the division of assets.

  1. Breaks Down Misconceptions

Many times, both parties bring their own misconceptions to mediation. You may think you know what the other party wants to get out of mediation; but until you have a clear discussion about it, you’re likely working off of your own assumptions. The same is true for them. Mediation is a good chance to lay everything on the table and make sure you’re working with accurate information while making decisions.

  1. Reaches a Mutually Beneficial Solution

In matters of family law, it’s essential to come to a decision that benefits everyone. Not only do your decisions impact your and your spouse or ex-spouse’s life, they affect your children. When you maintain your flexibility throughout mediation, you remain open to solutions that allow your children to maintain relationships with both parents, build secure bonds, and enjoy the benefits of a peaceful co-parenting relationship between their caregivers. Mediation can help people in a variety of legal situations, allowing individuals to protect their privacy and minimize time spent in the courtroom. To learn more about your legal options, contact Irwin Kuhn today.

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