1. Tenants in Common

Taking title to real estate as tenants in common is sometimes a deliberate choice or can be the default when no other method is specified. In a tenancy in common, two or more people can share ownership rights to real property with each owner having a right to use and possess the entire parcel, regardless of the fractional share each owner paid. So, for example, if A pays $40K and B pays $60K for the property, this does not mean that B gets to divide the property up consistent with his 60% share and exclude A from it. Rather, both A and B must share the entire property.
The 50/50 rule applies to most aspects of a tenancy in common. For example, owners are equally responsible for maintenance costs and taxes. Only one property tax bill will be issued for the parcel, thus it is the responsibility of the parties to divide costs up as they see fit. The most efficient way to do this is through a tenancy in common agreement. Further, each owner is said to own his or her interest “severally”, meaning that he or she is free to sell or dispose of his or her interest, and no consent of the other co-owner is necessary to do so. It is easy to see some of the pros and cons of a tenancy in common, compiled below:

Pros of a tenancy in common:

• Allows individuals to pool their resources so that they can afford property,

• Each party can own different sections of the property if specified by a tenancy in common agreement, and

• Property taxes and other expenses are split between all owners

Cons of a tenancy in common:

• There are no survivorship rights in a tenancy in common, which means that when one owner dies, his/her share does not pass to the other owner, but rather to the decedent’s estate,

• Each owner must share the entire parcel with the other owner, unless the parties agree otherwise, and

• Owners may end up with unanticipated co-owners as a result of each owner’s right to freely transfer or sell their interest or when one owner passes away.

2. Joint tenancy

A joint tenancy, like a tenancy in common, allows two or more people or entities to share a property equally. However, unlike a tenancy in common, joint tenants have survivorship rights, meaning that if one owner dies, his or her share passes to the remaining owner or owners.
Joint tenants, like tenants in common, must share the entire parcel with the other owners. There is still the option of drafting a joint tenancy agreement to fractionally divide each owner’s share. However, there are some unexpected nuances here. For example, if joint tenants agreed to fractionally divide the parcel and one joint tenant decides to lease his or her share, most would presume that the owner offering the lease gets to keep all proceeds from the lease. However, this is incorrect – the typical presumption is that the lease proceeds must be split 50/50 or equally with the other owners.

Pros of a joint tenancy:

• Survivorship rights when one owner dies; his or her interest passes to the remaining owner(s), thus affording the opportunity to become a sole owner,

• Each owner can own specified sections of the property if specified by a joint tenancy agreement, and

• Property taxes and other expenses are split between all owners

Cons of a joint tenancy:

• Each owner must share the parcel with the other owners, unless the parties agree otherwise, and

• Equal rights and responsibilities of all owners mean that if one owner takes a loan out against the property, all co-owners may responsible.

3. Marital property

Wisconsin, being a marital property state views all property as owned by the marriage, not each individual in it. Thus, each spouse automatically owns a ½ share of all property acquired in the marriage, unless a marital property agreement specifies otherwise. For Wisconsin transplants who have acquired property out-of-state before moving to Wisconsin, property is recognized as quasi-community property, which is complex and helps courts determine how to divide property upon divorce or death.
Marital property, like property taken in joint tenancy, has survivorship rights. In the marital context, this means that if one spouses dies, the surviving spouse receives the deceased spouse’s half of the property. A common example is a home held in title as marital property. If both spouses are on the deed to the home, then the entire home goes to the surviving spouse. Depending on each couple’s situation, this may be either a pro or a con. Some of these pros and cons are outlined below:

Pros of marital property:

• Survivorship rights: If one spouse dies, his or her share goes to the surviving spouse

Cons of marital property:

• Frustrated interests: If one spouse wants to sell, but the other does not, it can cause a gridlock on being able to sell the property. Both spouses need to agree to sell.

• Even if one spouse was the one to acquire the property at first, the other spouse may acquire a ½ share if the property is used as a primary residence or marital funds are used to pay or upkeep the property. This can be a con in the context of divorce or estate planning.

Summary:

Now that you understand the three ways co-owners can take title to property and the cons that may arise when co-owners interest become frustrated, you may be wondering what solutions are available when co-owners cannot come to an agreement.

One option is asking the court to petition the property, which will be discussed in our upcoming blog post. Stay tuned and read on!

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Wills

If you have a will that was drafted in a different state before moving to Wisconsin, it will still be valid so long as it satisfies Wisconsin’s requirements of a valid will. These requirements include having the will in writing and having at least two disinterested witnesses at the time of signing.

In Wisconsin, your will may be changed through a codicil, which allows an individual to make amendments or changes at any time during their life. Some reasons that you may need a codicil to your will after moving to Wisconsin include, but are not limited to, changes to property, location of assets, location of beneficiaries, etc. For example, you may need to change the executor of your will if they live out of state. This is not only for practical reasons, in that the executor may have to handle matters in the decedent’s state, but also because Wisconsin law requires nonresidents to appoint an in-state resident to accept service of process and further, non-residency itself may be enough to disqualify an executor. See Wis Stat § 856.23.

Trusts

A living trust, also known as a revocable trust, is transferrable between states. However, it is important to speak with an attorney to update your trust to include any new assets and discuss whether moving your trust’s situs, aka its home, is advisable. On the other hand, an irrevocable trust’s situs may or may not be transferrable depending on the language of the trust. You should speak with an experienced estate planning attorney to understand the implications of having your trust’s situs in or out of state.

Similar to wills, it is advisable to have your trust’s situs as your state of residency. This is because unlike wills, which are attached to a person, trusts are entities governed by their respective state’s laws. Having a trust in a state other than your state of residency may require that your successor trustee hire an attorney in the state of the trust’s situs. Speaking with an attorney regarding your trust’s situs can help you understand other implications such as state fiduciary and inheritance taxes.

Transfer on Death Deed

A transfer on death deed allows property to be transferred to your beneficiaries without going through probate. If you have an existing transfer on death deed, it may need to be tweaked to reflect Wisconsin’s marital property laws. Moving to Wisconsin may make you to reconsider who is the beneficiary of your transfer on death deed. If it is the case that the beneficiary no longer seems appropriate, then you should speak with an attorney to revoke the deed and/or draft a new one.

Powers of Attorney

Your estate planning will typically include two kinds of powers of attorney (POA) – a financial power of attorney and a heath care power of attorney. The authority of someone granted to serve as a power of attorney is acknowledged in all states. However, moving is a perfect time to re-examine your agent selection. Wisconsin has adopted the Uniform Power of Attorney Act (UPOAA), along with 25 other states, which streamlines the laws governing POA’s. So, if your POA was created in a state that has not adopted the UPOAA, your POA could be challenged, and you should consult an attorney to clarify agent and grantor responsibilities.

Contact us today for a consultation at 262-725-0175 or our website’s contact page. Wynn at Law, LLC is based in Southern Wisconsin and has three office locations: Lake Geneva, Delavan, and Salem.

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Consider asking yourself these three questions to help determine whether to file for bankruptcy or divorce first:

Filing bankruptcy jointly before divorce saves money. When you file a Chapter 7 jointly, you only have one case, which allows you to split court and attorney’s fees between you and your spouse, rather than bearing the burden of these costs individually. A Chapter 7 bankruptcy filed with a knowledgeable bankruptcy attorney is typically discharged in approximately 90 days, saving you time and stress from arguing over these debts later during your divorce filing, thus decreasing divorce costs.

If your spouse files bankruptcy during your divorce, then the divorce will be paused until the bankruptcy case closes. Thus, it is a better idea to agree with your spouse to file bankruptcy jointly before divorce. This avoids dragging out the already very stressful and emotional process of a divorce filing.

Plus, several studies show that the number one reason for divorce is financial trouble. It is possible that discharging you and your spouses’ debts through a Chapter 7 bankruptcy may incidentally save your marriage once your financial issues are resolved.

2. Which spouse is responsible for which debts?

Wisconsin is a community property state; therefore, all property acquired during a marriage is subject to equitable distribution after divorce. This means that all debt incurred during the marriage, regardless of which spouse incurred the debt, is to be paid back 50/50. This can lead to collection efforts, lawsuits, and a hindered credit score.

Divorcing spouses can agree to divide these debts between themselves, but the stress of negotiating these debts can be relieved by filing a Chapter 7 bankruptcy before divorce, as it eliminates determining who pays for what debts during the divorce.

In making the decision of whether to file bankruptcy or divorce first, there are some cautions to be aware of. The first issue is the potential of having an uncooperative spouse who does not want to file jointly. If this is the case, then you should file alone. However, within the divorce proceeding, be careful not to agree to any conditions of the divorce requiring you to pay part of any joint debt. A completed Chapter 7 bankruptcy will free you of those financial obligations.

A second caution to be aware of is how marital debt is treated in bankruptcy. The payment of marital debt, or in other words, any debt you agreed to pay your spouse during divorce, may not be discharged or eliminated in bankruptcy.

A Chapter 7 bankruptcy exemption allows you to protect the equity in your property from creditors. For instance, the Wisconsin Chapter 7 exemption allows you to protect up to $75,000.00 in equity in your home, meaning that creditors cannot take your property if the equity in your home is less than $75,000.00.

Filing jointly may increase your exemption amounts because the State of Wisconsin allows you to double your exemption amounts, essentially allowing you to protect more property from creditors.

1. A lawyer can help you qualify for Chapter 7 when you may have thought you did not qualify

2. An improper filing can result in lost assets or a dismissed case, wasting your time and money

3. An experienced attorney can help fill out the complex forms and paperwork

4. An attorney can be a buffer between contentious spouses, thus easing communication

Schedule a Free Bankruptcy & Debt Consultation with Wynn at Law, LLC

If you are considering bankruptcy and have questions, don’t hesitate to contact our bankruptcy attorney, Shannon Wynn. Wynn at Law, LLC offers free, in-depth bankruptcy consultations. Our bankruptcy attorneys are here to listen, advise, and help during your financial difficulties so you can move forward with your life.

You can reach our bankruptcy attorney by phone at 262-725-0175 or our website’s contact page. Wynn at Law, LLC has bankruptcy law offices conveniently located in Salem, Delavan, and Lake Geneva, Wisconsin.

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Wisconsin’s Small Estate Affidavit statute allows estates under $50,000 to avoid probate and instead be transferred via affidavit. See Wis Stat. §867.03. It can be used by an heir, a trustee of a revocable trust, a person named in the decedent’s will, or a guardian after the passing of the decedent.

Why use a transfer by affidavit

A transfer by affidavit avoids the costly and time-consuming probate process and thus allows the estate’s assets to pass more quickly.

What assets apply to a transfer by affidavit?

A transfer by affidavit applies to any probate assets cumulatively worth under $50,000. Probate assets are any assets that do not have a specifically designated beneficiary or payable on death (POD) designation. Jointly owned items, such as bank accounts or vehicles with two names on the title, are considered non-probate assets because it is presumed that the property will transfer to the other joint owner upon the death of the other owner. Some examples of probate assets that could be transferred by affidavit include property titled solely in the decedents name such a vehicle, small parcels of hunting or fishing land, or bank accounts with no POD.

What is the process for a transfer by affidavit?

To transfer assets under Wisconsin’s Small Estate Affidavit statute, the heir, trustee of a revocable trust, beneficiary of the decedent’s will, or a guardian of the decedent, must complete the Transfer by Affidavit form. This form includes the name of the decedent’s estate, the total fair market value of the assets, and a description of the assets being transferred. If real estate is being transferred, then you must also complete an Affidavit of Heirship and the Affidavit of Service. If these additional forms are required, then you must present copies of them to the decedent’s heirs at least 30 days before filing the forms. Lastly, you must get the forms notarized and filed with the court. The property can then be claimed within 30 days of presenting the notarized affidavit.

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Suppose your neighbor does not perform regular maintenance on trees located on your adjacent property line. As a result, the branches are overgrown, not pleasant-looking, and provide too much shade in an area that you had previously used for sun-bathing. You want your neighbor to cut the tree branches so that they are no longer encroaching over your sun-bathing area, but your neighbor’s yard lacks signs of any landscape maintenance. Thus, you are worried that asking your neighbor to trim the trees will result in a “no.” Can you take matters into your own hands and cut the trees yourself? Could you face legal consequences?

The Right To Self-Help:

Wisconsin recognizes the common law right of self-help to cut encroaching branches at the property line. As an owner of real property, you not only own the physical ground itself, but also the airspace extending from your property. So, if your neighbor’s trees are encroaching your airspace, you are entitled to cut the overhang at the property line without informing your neighbor that you are doing so. However, it is wise to hire a professional to do the job, as you do not want to risk damaging the trees, or cutting too far onto your neighbor’s property, which could result in a trespass.

Issue – Building Obstructing Sunlight:

Suppose the facts are a bit different and instead of your neighbor’s trees encroaching on your sunbathing area, it is the construction of a 2-story shed. The shed now completely obstructs your sunbathing area, and now obviously a much larger issue that cannot be addressed with the right to self-help.

Private Nuisance Law:

Wisconsin’s Supreme Court took up a similar “building obstructing sunlight” issue in the case Prah v. Maretti in 1982. A landowner, Prah, relied on sunlight for his rooftop solar panels. His neighbor began constructing a home on the adjacent lot, which effectively blocked the sun from reaching the solar panels. Prah sued his neighbor for private nuisance and won. The court determined that Prah’s claim for private nuisance was reasonable and could therefore go forward, or in other words, back to the court to determine the appropriate remedy. The remedy the court granted is not stated, but it likely either barred the neighbor from building the home or required him to redesign it in a manner that did not block Prah’s solar panels.

The key factor that weighed into Prah’s successful private nuisance claim is that it was “reasonable.” In our example above, the building encroaching on one’s “sunbathing area” is likely to be deemed “unreasonable” and therefore, an unsuccessful private nuisance claim. In addition to a requirement of reasonableness, the nuisance must also be substantial; this is measured by asking whether the nuisance would be inconvenient or offensive to a reasonable member living in the same community. Again, it is unlikely that other neighbors value sunbathing as much as the sunbather in our example, thus making the encroachment insubstantial and an unlikely candidate for a successful private nuisance claim.

Schedule a Consultation Today!

If you are having issues or questions with your neighbor’s trees on your property, reach out to Wynn at Law, LLC for a real estate law consultation today! Wynn at Law, LLC has three convenient law office locations throughout Southeastern Wisconsin covering vacant land transactions in:

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Although you are allowed to file for bankruptcy yourself, it is often an expensive mistake. In this article, you will learn ten reasons why you should hire a bankruptcy lawyer.

10 Benefits of Hiring a Bankruptcy Lawyer

1) Hiring a lawyer increases your chances of successfully eliminating debt. An annual report published by the United States Bankruptcy Court for the Central District of California shows that individuals representing themselves (pro se) have a significantly lower bankruptcy success rate than individuals represented by a lawyer. In the case of Chapter 13 Bankruptcy, debtors represented by a lawyer are more than ten times more likely to reach a successful outcome than individuals representing themselves.

2) A lawyer can help you decide if bankruptcy is the right option for you. It is essential to evaluate and understand all of the options available to you when you are facing overwhelming debt. While it may seem like bankruptcy is your only choice, a lawyer may have a better solution for managing your debt without declaring bankruptcy.

3) You don’t know which bankruptcy option is best for your situation. An experienced bankruptcy lawyer will review your financial situation and explain your bankruptcy options. In Wisconsin, the two most common types of personal bankruptcy are a Chapter 7 Bankruptcy and a Chapter 13 Bankruptcy. Wynn at Law, LLC’s lawyers can help you identify which type best fits your current situation and guide you through the entire process. 

4) A bankruptcy lawyer will help eliminate all eligible debts. A bankruptcy lawyer will know which debts can be discharged and the best type of bankruptcy to use to discharge your debt. For example, a lawyer can identify and eliminate debts beyond the statute of limitations for collections. You will also save money by fully discharging your obligations and not having lingering debts after completing your bankruptcy. 

5) Experience is crucial to success. Do you know the U.S. Bankruptcy Code? Do you know Wisconsin District Courts’ bankruptcy laws? Do you know what property is exempt from bankruptcy? Filing for bankruptcy requires knowledge of the federal code and local case law. An experienced bankruptcy lawyer has worked on hundreds of cases and understands the intricate details of the process. A bankruptcy lawyer will be familiar with current laws, courtroom procedures, the bankruptcy filing process, and filing timeframes.

6) Hiring a lawyer saves you time. Hiring a lawyer saves you countless hours, as you no longer have to spend your time researching and reviewing bankruptcy information. In some cases, a lawyer can identify shortcuts and smooth out the scheduling process. Wynn at Law, LLC’s bankruptcy lawyers will guide you through the complicated procedures and keep you informed at every stage. 

7) You don’t have to handle the paperwork. Filing for bankruptcy requires accurate, detailed, and timely paperwork. It is crucial to have precise information and sufficient supporting documentation. While much of the information will come from you, a lawyer can help you complete the paperwork and provide legal advice on your disclosures, valuing assets, income, and expenses.

8) Lawyers have an established relationship with the bankruptcy court, judges, and trustees. A bankruptcy lawyer has gone through this before; they are familiar with bankruptcy courtroom etiquette. Lawyers have already built relationships with the people involved in the process, making communication easier for you. When the trustee asks for additional information or details, your bankruptcy lawyer will be prepared.

9) You get protection from harassment by creditors and collection agencies. Once you hire a bankruptcy lawyer, harassing phone calls from creditors will stop. Once a lawyer represents you, you can inform creditors or debt collectors and force their phone calls and letters to go through your lawyer instead. After you officially file, an automatic stay will be granted, which legally extends your harassment relief.

10) Lawyers offer you peace of mind and protection from uncertainty. Peace of mind goes a long way. You won’t have to worry about mistakes, losing your assets, or preparing for a court appearance. Your bankruptcy lawyer will advise you on what will happen ahead of time, complete your paperwork correctly, and sit by your side in creditor meetings or court. It is your lawyer’s responsibility to fight for the best outcome for you and protect your rights.

Do I Need a Bankruptcy Lawyer?

The logistics of bankruptcy paperwork, credit reporting bureaucracy, and collection agencies’ tactics can be challenging to manage without a lawyer. While you do not need a lawyer to file for bankruptcy – it is strongly recommended. 

Are you still considering filing without an attorney, even after reviewing the list of reasons you should hire a bankruptcy lawyer? If so, you should understand some of the risks of representing yourself (pro se representation) when filing for bankruptcy.

The Risks of Filing Bankruptcy Without a Bankruptcy Lawyer

One little mistake could cost you everything. If you file incorrectly or the filing is incomplete, the bankruptcy judge could throw out your case. If that happens, you may not be able to refile for any type of bankruptcy in the near future or if you can refile, you may lose protection from creditors taking action against you. Incorrectly listing assets could cost you not only your debt being discharged, but you could lose the possessions you sought to protect. Bankruptcy lawyers know how to protect your assets and successfully lead you through the process.

Mistakes could mean criminal charges for fraud or perjury. Committing fraud in a bankruptcy case can land you in jail. You cannot hide assets or income from the bankruptcy trustee or judge (even those that you haven’t received yet). Do you know the law well enough to avoid this serious situation? Did you sign over a vehicle, deed property, gift money, or other assets to a friend or relative? A bankruptcy lawyer will help you file your petition and truthfully list your assets in a way that protects you from criminal charges. 

You may end up paying more of your debt. When communications between the bankruptcy trustee and your creditors occur, can you respond without negatively impacting your bankruptcy discharge? If a creditor files a lawsuit or contests your discharge of debt – how will you respond? A bankruptcy lawyer can protect your interests, effectively communicate with all parties involved, and save you money in negotiating with creditors.

Get a Free Consultation with a Wisconsin Bankruptcy Lawyer

Meeting with a bankruptcy lawyer in the early stages of financial difficulty can allow you to explore all of your debt relief options. If you can’t make regular payments on your existing debt, filing for bankruptcy may be a solution. Wynn at Law, LLC’s lawyers will meet with you to discuss your financial situation and help you determine if bankruptcy is right for you.

Contact Wynn at Law, LLC for a free bankruptcy consultation: 262-725-0175

Wynn at Law, LLC has law offices in Lake Geneva, WI, Delavan, WI, and Salem Lakes, WI. Our lawyers provide legal advice and representation to residents throughout Southeastern Wisconsin. We are a debt relief agency that can help individuals or couples file for bankruptcy relief under the U.S. Bankruptcy Code. Filing for bankruptcy is an intricate legal process. The federal court in the Eastern District of Wisconsin oversees bankruptcy cases for residents of Walworth County, Racine County, and Kenosha County.

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Wisconsin Safe Deposit Will Retrieval

Photo by Arman Zhenikeyev, used with permission.

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