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Probate

Monday, November 24, 2014

What is a Successor Trustee

A Minneapolis Estate Planning Lawyer Defines a Successor Trustee and Explains Why You Should Have One

You did everything right. You sat down with a lawyer, paid her to draft your estate plan, created a living trust and named each other as trustees. But, the unthinkable happened and your spouse died before you did. You were so sure it would be you first. Your lawyer now explains that you are the successor trustee and that you must now administer your spouse's trust. What does she mean by a successor trustee? 


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Monday, November 17, 2014

What To Do After Death, Part I

Minneapolis Probate Lawyer: What is Probate?

I often explain to people that I am a "probate lawyer" only to be met with a blank stare.  Occasionally, the statement "I don't know what that means" will accompany the blank stare. So, I decided to draft a series of posts under the "Probate" heading that will offer some general explanations and definitions.  Hopefully, this will offer some guidance to those suffering a loss who aren't sure of their next steps.


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Monday, November 10, 2014

How to Choose an Executor

A Minneapolis Probate Lawyer Discusses Selecting An Executor Post Mortem

The death of a loved one is a difficult experience no matter the circumstances.  It can be especially difficult when a person dies without a will.  If a person dies without a will and there are assets that need to be distributed, the estate will be subject to the process of administration instead of probate proceedings.


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Wednesday, September 17, 2014

A Simple Will Is Not Enough

Minneapolis Estate Planning and Probate Lawyer Explains the Minimum Documents You Need to Protect Your Family

I sometimes hear comments like "I just need a simple will" or "Why can't I just get my will on the internet"?  I want to be clear that a basic last will and testament cannot accomplish every goal of estate planning; in fact, it often cannot even accomplish the most common goals.  This fact often surprises people who are going through the estate planning process for the first time. Or worse, the family left behind finds this out when they attempt to settle a loved ones estate.  In addition to a last will and testament, there are other important planning tools which are necessary to ensure your estate planning wishes are honored.


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Thursday, May 29, 2014

What is Estate Recovery?

Minneapolis Estate Planning Attorney Explains Minnesota's Medical Assistance Program. 


Medicaid, known as Medical Assistance in Minnesota, is a federal health program for individuals with low income and financial resources that is administered by each state. This program is intended to help individuals and couples pay for the cost of health care and nursing home care.

Most people are surprised to learn that Medicare (the health insurance available to all people over the age of 65) does not cover nursing home care. The average cost of nursing home care, also called "skilled nursing" or "convalescent care," can be $8,000 to $10,000 per month. Most people do not have the resources to cover these steep costs over an extended period of time without some form of assistance.

Qualifying for Medical Assistance can be complicated as it is governed by a combination of federal state laws/rules. Once qualified for a Medical Assistance subsidy, Medicaid will assign you a co-pay (your Share of Cost) for the nursing home care, based on your monthly income and ability to pay.

At the end of the Medical Assistance recipient's life (and the spouse's life, if applicable), the county who paid for care will begin "estate recovery" for the total cost spent during the recipient's lifetime. The county will issue a bill to the estate, and will place a lien on the recipient's home in order to satisfy the debt. Many estate beneficiaries discover this debt only upon the death of a parent or loved one. I have numerous clients who came to me upon trying to sell their parents' house only to learn - sometimes at closing - that there was a Medical Assistance lien on the property. In many cases, the Medical Assistance debt can consume most, if not all, estate assets.

There are estate planning strategies available that can help you accelerate qualification for a Medical Assistance subsidy, and also eliminate the possibility of a Medical Assistance lien at death. It is very important to consult with an experienced elder law attorney in your jurisdiction.


Sunday, March 23, 2014

How Do You Put Assets Into Your Trust?

A Minneapolis Estate Planning Attorney Answers the question: What Does the Term "Funding the Trust" Mean?



If you are about to begin the estate planning process, you have likely heard the term "funding the trust" thrown around a great deal. What does this mean? And what will happen if you fail to fund the trust?

The phrase, or term, "funding the trust" refers to the process of titling your assets into your revocable living trust. A revocable living trust is a common estate planning document and one which you may choose to incorporate into your own estate planning. Sometimes such a trust may be referred to as a "will substitute" because the dispositive terms of your estate plan will be contained within the trust instead of the will. A revocable living trust will allow you to have your affairs bypass the probate court upon your death, using a revocable living trust will help accomplish that goal.

Upon your death, only assets titled in your name alone will have to pass through the court probate process. Therefore, if you create a trust, and if you take the steps to title all of your assets in the name of the trust, there would be no need for a court probate because no assets would remain in your name. This step is generally referred to as "funding the trust" and is often overlooked. Many people create the trust but yet they fail to take the step of re-titling assets in the trust name. If you do not title your trust assets into the name of the trust, then your estate will still require a court probate.

A proper trust-based estate plan would still include a will that is sometimes referred to as a "pour-over" will. The will acts as a backstop to the trust so that any asset that is in your name upon your death (instead of the trust) will still get into the trust. The will names the trust as the beneficiary. It is not as efficient to do this because your estate will still require a probate, but all assets will then flow into the trust.

Another option: You can also name your trust as beneficiary of life insurance and retirement assets. However, retirement assets are special in that there is an "income" tax issue. Be sure to seek competent tax and legal advice before deciding who to name as beneficiary on those retirement assets.

The estate planning attorney at Unique Estate Law offers all clients a 6-page set of Funding Instructions to help walk you through the process after you've left the office and can't recall how to put your checking account into your trust.


Sunday, January 19, 2014

Protect Your Family Cabin with a Trust

Protecting Your Vacation Home with a Cabin Trust

Many people own a family vacation home--a lakeside cabin, a beachfront condo--a place where parents, children and grandchildren can gather for vacations, holidays and a bit of relaxation. It is important that the treasured family vacation home be considered as part of a thorough estate plan. In many cases, the owner wants to ensure that the vacation home remains within the family after his or her death, and not be sold as part of an estate liquidation.

There are generally two ways to do this: Within a revocable living trust, a popular option is to create a separate sub-trust called a "Cabin Trust" that will come into existence upon the death of the original owner(s). The vacation home would then be transferred into this Trust, along with a specific amount of money that will cover the cost of upkeep for the vacation home for a certain period of time. The Trust should also designate who may use the vacation home (usually the children or grandchildren). Usually, when a child dies, his/her right to use the property would pass to his/her children.

The Cabin Trust should also name a Trustee, who would be responsible for the general management of the property and the funds retained for upkeep of the vacation home. The Trust can specify what will happen when the Cabin Trust money runs out, and the circumstances under which the vacation property can be sold. Often the Trust will allow the children the first option to buy the property.

Another method of preserving the family vacation home is the creation of a Limited Liability Partnership to hold the house. The parents can assign shares to their children, and provide for a mechanism to determine how to pay for the vacation home taxes and upkeep. An LLP provides protection from liability, in case someone is injured on the property.

It is always wise to consult with an estate planning attorney about how to best protect and preserve a vacation home for future generations.


Monday, December 02, 2013

14 Costly Misconceptions About Planning for Your Senior Years

A Minneapolis Estate Planning and Probate Lawyer Discusses Estate Planning Issues Specific to Seniors

Misconception #1: Most seniors move into nursing homes as a result of minor physical ailments that make it hard for them to get around.  Wrong!  A large percentage of admissions to nursing homes is because of serious health, behavior, and safety issues caused by Alzheimer’s disease and dementia.

Misconception #2: Nursing home costs in Minnesota average $1,500 to $2,500 per month per person.  Hardly.  Current nursing home charges for one resident typically run $6,000 per month, or $72,000 per year, which does not include prescription drugs -- and those costs continue to rise.

Misconception #3: Children can care for a parent with Alzheimer’s disease at home, without the need for nursing home care.  Not true!  Many patients with Alzheimer’s disease end up in nursing homes because children are simply unable to provide the level of care their parent needs.  In most cases, the children want to care for their parents.  But, as a practical matter, they simply can’t.  Moving a parent into a nursing home is an intensely personal issue and should not be labeled as a right or wrong decision. In many cases, it’s the only realistic option.  The rare exception is when the family has enough money to pay for skilled nursing care at home.

Misconception #4: Standard legal forms are all you need for a good estate plan.  Not true.  A competent estate plan begins with clearly defined goals, supported by well-drafted legal documents, and the repositioning of assets, as needed, to protect your estate from taxes, probate costs, and catastrophic nursing home costs. But you MUST PLAN EARLY.

Misconception #5: Your child will never move you into a nursing home.  Wrong.  Most children consider all options before moving a parent into a nursing home.  But, sadly, children usually find they have no other alternative.  As a result, parents who never expected to live in a nursing home soon discover that a nursing home is the only place with the staff and equipment to provide the care they need.

Misconception #6: As payment for nursing home care, the government will take your family home.  Not true, if you plan ahead.  Many people fear that the government will take their home in exchange for nursing home care, but you can avoid this with proper planning.  You’ll be glad to know there are some ways you can protect your home so it won’t be taken.

Misconception #7: You will never end up in a nursing home.  That’s hard to predict.  Your odds are roughly 50/50.  Of Americans reaching age 65 in any year, nearly half will spend some time in a nursing home.  And a surprising number will require care for longer than one year.  That means every year, tens of thousands of seniors will face costs of $48,000 or more ($60,000 in Minnesota), which does not include the cost of prescription drugs.

Misconception #8: If your spouse enters a nursing home, all of your joint savings will have to be spent on his or her care.  No.  With proper planning you can keep half of your combined “countable” assets up to approximately $103,000 (increasing each year).  In some circumstances, you may be able to protect nearly all of your life savings.  In fact, it is often possible to protect much more than the $103,000 maximum.  “Countable” assets are those assets such as cash, checking accounts, savings, CDs, stocks, and bonds that the government considers available to be spent on the cost of nursing home care.

Misconception #9: Legally, you can give away only $14,000 to each of your children each year.  Not true.  You can give away any amount, but you have to report to the IRS gifts in excess of $14,000 per recipient per year ($28,000 if both husband and wife make a gift).  However, there is no requirement that you pay any gift tax unless you have exhausted your lifetime exclusion amount, which is currently set at $2,000,000 for an individual. But, there is a "look back" period so you must work with a qualified attorney before gifting away any assets as you age.

Misconception #10: You can wait to do long-term planning until your spouse or you get sick.  Yes, to some degree.  However, you and your spouse will be much better off if you have taken important planning steps in advance, before a crisis occurs.  What stops most people from being able to effectively plan when they are in the middle of a crisis is that the ill person is unable to make decisions and sign the necessary legal documents.

Misconception #11: All General Durable Powers of Attorney are created equal.  Completely false!  A General Durable Power of Attorney is a highly customized legal document -- and NOT a form!  Most Durable Powers of Attorney don’t contain even the most basic gifting authority.  Without a gifting power, your agent is usually limited to spending your money on your bills and selling your assets to generate cash to pay your bills.  Some Durable Powers of Attorney contain a gifting provision, but the Minnesota Statutory Power of Attorney it is limited to $10,000 per year.  This is particularly concerning for unmarried couples as the IRS considers ANY exchange of money/assets between them to be a gift.  The annual limit of $10,000 is too small for effective asset protection planning, and relates to a completely different type of federal estate and gift tax issue.  Unique Estate Law has created an enhanced power of attorney to get around that limit.

Misconception #12: Since you are married, your spouse will be able to manage your property and make financial decisions without a general durable power of attorney.  Not true.  If you become incapacitated and your spouse needs to sell or mortgage the family home -- or gain access to financial ac-counts that are in your name only -- your spouse will need a general durable power of attorney.  Without one, your spouse will have to go to Court and get the judge’s permission to act on your behalf by way of a conservatorship proceeding.

Misconception #13: You can hide your assets while you become eligible for Medicaid (Known as Medical Assistance in Minnesota).  False!  Intentional misrepresentation in a Medicaid application is a crime and can be costly.  The IRS shares any information concerning your income or assets with the local Medicaid eligibility office.  You -- or who-ever applied for Medicaid -- may have to repay Medicaid to avoid prosecution.

Misconception #14: Medicaid rules that applied to your neighbor when he went into a nursing home will also apply to you.  Maybe not.  Medicaid rules change.  Don’t assume the law that applied to your neighbor will also apply to you.  In addition, there may have been facts about your neighbor’s situation that you just don’t know.


Monday, November 18, 2013

Updating Your Estate Plan, Part II: Signs It's Time to Update Your Estate Plan

A Minnesota Estate Planning and Probate Attorney Lists 20 Red Flags That Signal When Your Will or Living Trust is Out of Date

I offer clients the opportunity to sit down with me and review their estate plans at least once each year.  However, this doesn’t mean you should wait until your next review if your circumstances change.  This Estate Planning Checklist identifies events that could make a significant impact on your estate.  If any of these events occurs, please call me.  For your protection, we may need to amend or revise one or more of your estate planning documents.

Changes Involving You or Your Spouse/Partner

1.  You get married.
2.  You and your spouse divorce or partner break up.
3.  Your spouse/partner dies or becomes incapacitated.
4.  Your health changes.

Changes Involving Your Children, Grandchildren or Other Beneficiaries

5.  You have a child.
6.  You adopt a child.
7.  Your child marries.
8.  Your child divorces.
9.  Your child becomes ill.
10.  One of your beneficiaries experiences an economic change, good or bad.
11.  One of your beneficiaries proves to be financially irresponsible.
12.  One of your beneficiaries has a change in attitude toward you.

Changes in Your Economic Condition

13.  The value of your assets increases or decreases.
14.  Your insurability for life insurance changes.
15.  Your employment changes.
16.  Your business interests change, such as becoming involved in a new partnership or corporation.
17.  You retire from your business or profession.
18.  You acquire property in a different state.
19.  You move to a different state.

Changes to a Person Named in Your Estate Plan

20.  Something happens to a person named in your estate plan, such as the death or incapacity of your personal representative, executor, trustee, guardian or conservator.


Monday, November 11, 2013

Updating Your Estate Plan, Part I: Why Your Plan May Need Maintenance.

Minneapolis Estate Planning and Probate Lawyer Explains Why Your Estate Plan Needs Maintenance

When you buy a new car, everything works perfectly.  (At least, you hope it does.)  But then in 3,000 miles, it’s time for an oil change.  Also, you must keep your eye on the level of coolant in the radiator, your transmission fluid, and your power steering fluid.  You must make sure your alternator works to keep the battery charged.

What happens if you don’t maintain your car?  Your engine could burn up.  Your transmission could fail.  Your car could overheat.  Your battery could go dead.  All of which mean you’re stuck on the side of the road trying to hitchhike to the nearest town.

Your estate plan is like your car.  When you set it up, everything is current and accurate.  But you need to keep your eye on your assets, insurance, Powers of Attorney, gifting program, distribution plan, successor trustees, beneficiaries, and so much more.  That’s why it’s important that you meet with your estate planning attorney every year.

You wouldn’t think of going on a long trip without making sure that your car was in tip-top shape.  Yet every day, people embark on the long trip we call life.  And the problem with our “life trip” is that we’re never sure when that trip might end.  It’s a good idea to review your estate plan with your lawyer every year or two to see if changes in your family’s circumstances need to be reflected in your estate plan.

For example: You should review your estate plan with your estate planning attorney any time (1) you get married, (2) you go through a break up or divorce, (3) your partner/spouse dies or becomes incapacitated, (4) your health changes, (5) you have or adopt a child, (6) your children marry or divorce, (7) a potential problem arises with a beneficiary, (8) the value of your assets changes, (9) your employment changes, (10) your business interests change, (11) you retire, (12) you acquire property in another state, (13) you move to a different state, or (14) something happens to a person named in your estate plan that could affect your relationship or the duties they are to perform on your behalf.

But wait.  Is your estate plan really like your car?  It’s more accurate to say it’s like a fire engine -- ready to handle any emergency at a moment’s notice.  When your spouse has a heart attack, you want the paramedics -- right now!  You don’t want to call 9-1-1 and have the dispatcher explain to you that the fire truck has a dead battery.  Or a flat tire.  

It would be ridiculous to buy a new fire engine, back it into the fire station where it waits for the next emergency, and then not have a mechanic check under the hood for a year.  Do you know how many things can go wrong with a fire truck’s engine if it goes without service for a year?

Yet that’s exactly what people do with their estate plans.  They invest hard-earned money to set up their plans.  Then they put their plans in a drawer or safe deposit box where they gather dust for 2 years, 5 years, even 10 years -- often without updating the plan even once!

And then, when these people have an emergency, do you know what happens?  They dig out their paper-work only to learn that their plan no longer works.  You see, it was custom designed to fit their specific needs 5 years ago.  But now their needs, and often the law, have changed -- and no one updated the plan.  What a tragedy!

Your estate plan must be fully operational, ready to handle any emergency at a moment’s notice.  If your spouse has a heart attack and cannot make medical decisions, you don’t want the nurse at the hospital to explain that the legislature changed the law and now your Powers of Attorney are no longer valid.  Or, if your spouse dies, you don’t want the judge to tell you that your estate must go through probate because your Revocable Living Trust has not been properly maintained and updated.

You need your estate plan to be ready for any emergency -- 24 hours a day -- because you never know when you might need it.

An out-of-date estate plan isn’t worth the paper it’s written on.  But a current estate plan that works precisely the way it should -- protecting your family and safeguarding your assets -- is the greatest gift of love you can give to your family, your spouse, and yourself.  Your custom designed estate plan, created specifically for you -- combined with yearly maintenance meetings to keep your estate plan in tip-top shape -- are the best investment you’ll ever make.  I guarantee it.


Monday, September 30, 2013

12 Problems That Could Cost Your Family a Fortune – and Their Solutions

Minnesota Estate Planning Attorney Discusses Frequent Issues/Concerns that Arise When Handling Someone's Estate

Problem #1: Probate. Probate is the Court-supervised process of passing title and ownership of a deceased person’s property to his or her heirs. The process consists of assembling assets, giving notice to creditors, paying bills and taxes, and passing title to property when the judge signs the order. Probate can cost your loved ones a sizeable portion of your estate. The biggest portion of the costs are the fees charged by attorneys and personal representatives for their services for the estate, in addition to filing fees, costs of publication, fees for copies of death certificates, filing and recording fees, bond premiums, appraisal and accounting fees, and so on. Often the fees of attorneys and personal representatives are based on a hourly rate, and while they can tell you what their hourly rate is, they cannot tell you the number of hours their services will take, so they cannot tell you what their total fees will be. Like surgery, probate can be simple and easy, but frequently probate can have very drastic and damaging results. Accordingly, like surgery, because of its uncertainty in terms of both the potential for problems and high costs and fees, probate is something best to prepare for if you can. You can avoid a substantially larger probate process by having an estate planning lawyer set up and fund a Revocable Living Trust. Since the Trust actually owns your assets, no significant probate of the estate will be required, saving your family many thousands of dollars.

Problem #2: Lawsuits and Creditors. Protect the property you leave to your partner/spouse and children from the claims of their creditors, ex-spouses, and the IRS. This can best be done with proper creditor protection provisions in a Revocable Living Trust.

Problem #3: Estate Taxes. For married couples, protect your assets from state and federal estate taxes by setting up and funding a tax-saving Credit Shelter Trust. Under current law, a Credit Shelter Trust will completely protect your assets from estate taxes for estates valued up to a certain amount will have to pay federal estate taxes. What is that amount? No one knows right now. The current exemption is $5,000,000 a person or $10,000,000 for a married couple.

Further, in Minnesota, the estate limit is $1,000,000 so your estate will pay taxes TO THE STATE for anything over $1,000,000. The tax rates generally comes out to 10% of the assets over that 1,000,000 mark.

Most couples don’t realize that the value of their estate for purposes of determining estate taxes includes their life insurance death benefit proceeds. Your estate includes EVERY asset you own at the time of death: real estate; cash, stocks, bonds, life insurance, retirement accounts, automobiles and personal property. It is not difficult to reach the $1,000,000 mark once all these assets are added up.

A well-designed estate plan costing between $3,000 and $6,000 will save a significant amount in federal estate taxes. Other ways you can avoid or reduce estate taxes include setting up (1) an Irrevocable Trust for your children, grandchildren or other heirs, (2) an Irrevocable Life Insurance Trust, (which detaches your life insurance benefits from your estate), (3) a Charitable Remainder Trust, and (4) Second-to-die Life Insurance so you can pay estate taxes for pennies on the dollar.

Problem #4: Income Taxes. A family can lower its overall income taxes by setting up a Family Limited Partnership to own income-producing property. A parent can do this by setting up a Family Limited Partnership and making gifts of limited partnership interests to the other limited partners, normally their children or grandchildren who pay income tax at lower tax rates. A Family Limited Partnership is an excellent tool to shift income to partners who pay taxes at lower rates. It is also an effective way to make gifts and still keep total control of the property owned by the partnership.

Problem #5: Lawsuits. Protect your assets from lawsuits by doing any or all of the following, as appropriate: (1) purchasing an umbrella liability insurance policy, (2) setting up a Family Limited Partnership, (3) setting up a program for lifetime gifting, (4) setting up a Limited Liability Company, and (5) incorporating. Further, you can protect your children from lawsuits by putting their inheritances into a Discretionary Trust. This is especially important if your children are likely to become professionals subject to potential malpractice actions or, on the other hand, are spendthrifts!

Problem #6: Inexperienced Beneficiaries. Protect your assets from being wasted by young or inexperienced family members. Most beneficiaries spend their entire inheritances in less than two years, regardless of the size of the estate or the heir’s socio-economic background. Your lawyer can set up your Family Trust with protective provisions that provide guidance and safeguard your life savings.

Problem #7: Guardianships. Protect your assets from the high costs of incapacity by (1) setting up a Living Trust so you avoid the need for a guardianship, (2) drawing up an Advance Healthcare Directive, and (3) drawing up a Health Care Power of Attorney.

Problem #8: Nursing Home Care. Protect joint assets from the high costs of nursing home care. Buy insurance that covers nursing home care and provides a death benefit that returns the money spent on nursing home care to your heirs.

Problem #9: Unwanted Medical Care. Protect your assets from unwanted and costly medical care by having an Advance Healthcare Directive and Health Care Powers of Attorney that spell out your instructions, including which medical care, treatment and procedures you want -- and which you don’t want.

Problem #10: Unwanted Emergency Care. Protect your assets from unwanted emergency care. If you have a terminal illness, you can draw up and sign a Pre-hospital Medical Directive that will tell emergency personnel not to resuscitate you in the event of a medical emergency. This directive is often referred to as a “Do Not Resuscitate Order”.

Problem #11: Ineffective Estate Plans. Protect your assets from an ineffective estate plan. Don’t depend on pre-printed “cookie cutter” form kits or document preparation services for your estate plan. Contrary to what you may have heard or read, one size does not fit all! You may think you have precisely what you need. But you will never know -- because your family members will have to clean up the mess. You see, after you die, your family members will try to use your documents to settle your estate. And if the documents weren’t drafted correctly, they will cause additional expense and long delays because a probate will have to be done to convey title to your assets.

Problem #12: Unqualified Lawyers. Many attorneys are getting into estate planning because it’s less stressful than other areas of law. Not surprisingly, most of these newcomers focus on the needs of senior citizens and almost never deal with issues affecting young families. If you have young children, make sure you choose an independent attorney who focuses their law practice on asset protection and estate planning for young families. This will help insure that the lawyer you choose has the knowl­edge, skill, experience and judgment necessary to fully protect your family and your assets, and to give you advice and counsel that is in your best interests.


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From within Hennepin County Unique Estate Law represents estate planning and elder law clients throughout Minnesota, including Minneapolis, Edina, Bloomington, St. Louis Park, Minnetonka, Plymouth, Wayzata, Maple Grove, St. Paul, and Brooklyn Park. The Minnesota law firm of Unique Estate Law focuses on all aspects of estate planning, including specialized wills, trusts, powers of attorney and medical directives for married couples, young families, blended families, single parents, gay families and those going through a divorce. Unique Estate Law also handles probate administration, asset protection, Medical Assistance planning, elder law, business succession planning, adoptions and cabin planning.



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3800 American Blvd., Suite 1500, Bloomington, MN 55431
| Phone: 952-955-7623
333 Washington Avenue North, Minneapolis, MN 55401
| Phone: 952-955-7623
5775 Wayzata Blvd., St. Louis Park, MN 55416
| Phone: 952-955-7623

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