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.

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.

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.

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.

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.

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.

2. 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.

3. 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.

4. 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.

Estate planning can be a tricky process to navigate—there are lots of options to consider, and without legal advice, it can be difficult to know which solutions are right for your needs. Many people believe that a Will is the best choice for their family. However, there are several things a Will cannot do that you may be able to accomplish with a living trust.

1. Avoid the Probate Process

A Will does not help your family avoid the lengthy and potentially costly probate process after you pass. During probate, your assets are held while the court validates the authenticity of your Will, pays off bills and taxes, and distributes the remains of your estate to your beneficiaries. If you want your beneficiaries to have immediate access to your assets and funds after you pass, a Will may not be the right choice.

2. Manage Your Assets While You’re Alive

A Will does not go into effect until you pass away. Individuals who choose a living trust act as the trustee of the trust, allowing them to manage assets, add beneficiaries, and make changes to their estate plans. Individuals can also transfer their assets into the trust if they continue to accrue assets after drawing up the living trust. A Will is not legally enforceable until the named individual dies. If you are suddenly unable to manage your trust, your named successor can manage your assets on your behalf.

3. Keep Legal Matters Private

Wills are made public when they go through the legal system, so some of your family’s most private matters become accessible by the general public. This is especially important for those who are local celebrities, politicians, or in the public eye. The media is likely to obtain court records and expose the details of their financial matters. A living trust is not made public, making it a more suitable option for those who want to keep these matters in the family.

4. Protect You if You Become Ill or Disabled

While a Will outlines what you want to happen after your death, it does not detail what will happen to you or your assets if you become ill or disabled. If you’re unable to handle your affairs and you only have a Will, the court will assign you a guardian. In comparison, a living trust allows the successor trustee to step in immediately once you become incapacitated.

Taking the time to properly plan your estate can provide for your family after your passing and ensure that all of your hard work continues to benefit your loved ones. If you’re ready to start planning for your family’s future, contact the law office of Venick, Kuhn, Byassee, Austin & Rosen, PLLC to set up a consultation.

Irwin Kuhn, along with Michael Sontag, a partner in the Nashville office of Bass Berry & Sims, presented a continuing legal education program on prenuptial and postnuptial agreements for the Nashville Bar Association on Valentines Day 2019. The title of the CLE was Prenuptials and Postnuptials, They’re Like a Box of Chocolates; You Never Know What You’re Going to Get. The presentation focused on current case  law and best practices in crafting pre and postnuptial agreements in Tennessee.

LIVING TOGETHER AS A COUPLE AND WHAT THAT MEANS WHEN YOU DIE

More United States adults are cohabiting with a partner than in years past. The Pew Research Center reports that as marriage rates have fallen, the number of adults in cohabiting relationships has continued to climb, reaching about 18 million in 2016.
You may be sharing an apartment or a house and co-mingling your other personal property. Which works well until you die. (No one needs to reflect very long on Nashville traffic to know that Nashville traffic fatalities have increased year by year as well). The surviving partner may well be dependent on the now deceased partner’s income as to staying in the shared housing or on continuing the life style the couple maintained. A will leaving property to the surviving partner may help provide that ability to continue in a familiar setting after the loss.
If the deceased does not leave a will it is known as dying intestate. The property of an individual dying intestate in Tennessee is subject to certain laws that govern distribution of their personal property and real property. If unmarried, the entire estate will go the individual’s children. If there are no children (or heirs of children), the estate goes to their parents. If no parents survive then an estate passes to the siblings (or their heirs). If there are no children, no parents and no siblings, the estate passes to more distant relatives. There is no provision in intestate inheritance for an unmarried partner.
The heirs at law can make it very difficult for the surviving partner by demanding property be distributed to them and an accounting made of co-mingled property. Access to the house to get personal property or beginning an eviction is possible. You hope that the heirs of a single decedent would be understanding, but that is not always the case.
A will can specify that your property goes to the surviving partner. It can also specify that the inheritance is only effective “as long as you are cohabiting” at the time of death. The will can also equitably divide an estate between the partner and other heirs. It is often something put off since almost no one likes to go to their lawyer’s office, but it is of great benefit and fairly simple to state in a will.
An older will takes care of being intestate but may no longer express the situation of a decedent if there is an unmarried partner in the picture. Since 2007, the number of cohabiting adults ages 50 and older grew by 75%. This increase is faster than that of other age groups during the same time period and driven in part by the aging of the Baby Boomers. A revised will may set up a trust of funds during the life time of a partner to allow them to have the benefit of funds if needed, but still provide that other heirs will benefit after the death of the partner. A life estate in real property may allow a survivor to live in a house they are used to during the rest of their life. This intentional planning may take the burden of determining what the wishes of the decedent were off the adult children of the deceased. Updating an existing will (and insurance beneficiaries) is also important in a cohabitating situation.

The Nashville Tennessean’s Holly Meyer recently wrote about our partner Irwin Venick in an article: Why Social Justice is a Lifelong Work for One Nashville Jewish Leader.

http://www.tennessean.com/story/news/religion/2017/03/12/why-social-justice-lifelong-work-one-nashville-jewish-leader/99012904/