Mills & Boehm, LLP
FAQs
Real Estate Sales and Purchases
Q: What can an attorney do to represent a seller?
A: An attorney can provide an overview of the sale process, review listing contracts, prepare and review the Offer to Purchase, draft the closing documents including the Deed, Transfer Return and Closing Statement, and help coordinate all aspects of the closing.
Q: What can an attorney do to represent a buyer?
A: An attorney can provide an overview of the sale process, review buyer agency agreements, prepare and review the Offer to Purchase, examine the commitment for title insurance, review the proposed closing documents to ensure that the buyer will receive clear title, explain differences in how title to the property may be held, and explain the buyer's rights and obligations at each stage of the transaction.
Q: If I have a real estate agent do I still need an attorney?
A: The real estate agent cannot advocate for either side of the transaction and cannot give legal advice. An attorney represents a specific party's interests and can help ensure that their client's rights are well protected.
Q: What types of contingencies might be included in an Offer to Purchase?
A: Although the contingencies vary depending on the needs of the parties, type of property and the circumstances of the transaction, typical contingencies may include: financing, inspection, sale of an existing home, well and septic inspections, and zoning or land use contingencies. An experienced attorney can ensure that the contingencies are drafted to meet their client's specific needs.
Real Estate Concerns and Disputes
Q: My neighbor's driveway is partially on my property, should I be concerned?
A: Most people in this sort of situation simply want to be good neighbors but may be concerned about liability issues or loss of ownership over the property. A qualified attorney can address these concerns through a permissive use agreement to protect against any loss of ownership by adverse possession or injury claims by the neighbors or their guests.
Q: Three lots all share one driveway but there is no formal agreement. Should we have one?
A: Even if everyone is getting along it is best to have a shared driveway easement agreement defining each property owner's rights and responsibilities signed and record at the Office of the Register of Deeds. This gives everyone protection in case any dispute arises in the future. It also makes it easier for any of the affected families to sell their property.
Q: What are riparian rights?
A: In simple terms these are the rights to use land bordering on a lake or river. These may or may not include the right to have a pier. Recent changes in the laws have made it important to consult with an experienced professional to understand what your riparian rights may be.
Small Claims Actions
Q: When is it appropriate to use the small claims procedures?
A: Small claims court provides a method of resolving legal issues where the damages sought are $5,000 or less; where a creditor holding a lien wants to repossess property valued at $5,000 or less ("replevin"); a creditor has a judgment for $5,000 or less that they want to enforce by garnishing bank accounts or wages; and eviction actions.
Q: Do I need an attorney to sue in Small Claims Court?
A: Whether or not you should hire an attorney depends on how complex your case is and whether the opposing side is represented by an attorney. Keep in mind that even if you win the amount of attorney fees you may be awarded is limited to $100 or less.
Landlord/Tenant Law
Q: Should I have a written lease?
A: Although leases for a year or less are not required to be in writing, it is recommended that a written lease agreement is signed by the landlord and tenant. This will help prevent misunderstandings and will make it easier to prove the terms of your agreement if a dispute arise.
Q: Can a person be evicted in the winter?
A: Yes. Wisconsin does not have any provision preventing evictions during the winter months.
Q: When can a landlord withhold a tenant's security deposit?
A: A landlord may use the security deposit for nonpayment of rent, nonpayment of amounts owed for utility service, waste or neglect of the premises by the tenant, and damage to the premises beyond ordinary wear and tear. The landlord is required to give the tenant a written statement of the amounts being withheld and the basis for withholding those amounts.
Divorce and Family Law
Q: How long does it take to get a divorce?
A: Generally it will take at least four months, usually longer. Unless the court makes a special exception, there is a mandatory 120 day waiting period so the couple has a chance to fully consider their decision to divorce. The length of the process is affected by the court's calendar, the complexity of the issues in dispute, and the ability or inability of the spouses to resolve any of their issues prior to a trial.
Q: When is my divorce final?
A: The divorce is final at the time of the final hearing when the Court grants the judgment of divorce. Even though the divorce is final on that date the parties are prohibited from marrying other people for a period of six months even if the subsequent marriage is in another state or country that does not have the same restriction.
Q: How is the amount of child support decided?
A: In most cases child support is based on a percentage of the non-custodial parent's gross income. These percentages vary depending on the number of children covered. If both parents share significant amounts of time (overnight placement) with the children, a formula is used to calculate the support obligation. If use of the statutory percentage guidelines is unfair to either party the court may use other criteria in setting child support although this is uncommon. If the court believes either parent is shirking his or her child support obligation, for example by declining reasonable opportunities to work, the court can base child support on the payer's earning capacity instead of his or her actual earnings.
Q: If the court order's one spouse to pay certain bills and they don't can the creditor sue both of us?
A: Yes. If the debt was incurred while you were married the creditor was extending credit to both spouses. Since the creditor is not a party to the divorce action their relationship with you does not change. If the creditor sues for an obligation that was assigned to your ex-spouse, you can bring him/her into the lawsuit.
Probate
Q: What is probate?
A: Probate is a court procedure for transferring ownership of a person's assets after he or she passes away. The Will (if there is one) is validated, a Personal Representative (also sometimes referred to as Executor) is appointed, and the estate is distributed according to the terms of the Will or the laws of intestate succession.
Q: What costs are associated with probate?
A: In addition to paying the decedent's debts and funeral expenses, there are administrative expenses which may include the Personal Representative's fee (usually 2% of the value of the estate assets), an Inventory filing fee of 2/10ths of 1% of the decedent's probate assets, publication of legal notice, and attorney's fees if an attorney is hired, and the costs of preserving and liquidating the decedent's assets, such as a commission charged upon the sale of real or personal property.
Q: When is probate needed?
A: That will depend on the types of assets and value of assets. Property that is titled with joint ownership such that it automatically passes to the joint owner or that has a beneficiary designation are exempt from probate. Examples are joint savings accounts, life insurance or retirement accounts payable to a named beneficiary other than the estate, certificates of deposits with a "payable on death" (POD) designation. If the decedent's solely owned assets total less than $20,000 a legal heir of the decedent can complete a "transfer by affidavit" form and procedure. If you die with more than $20,000 of assets in your sole name, without any beneficiary designation, it is likely that some probate proceeding will be needed.
Q: How long does probate take?
A: Few estates can be probated in less than six months and complex matters can take two years or longer. State law requires that an estate be closed within 18 months unless an extension is granted by the court and most estates are concluded within this time frame. However, it is common for partial distributions to the beneficiaries to be made after the time for creditors to file claims has passed. Creditors have three months in which to file a claim after they receive notification of the claims deadline. It is common for partial distributions to be made before the estate is ready to be closed.
Wills and Trusts
Q: What is a Will?
A: A Will is a written document in which you designate who will serve as the Personal Representative (Executor), who will receive your assets that pass through probate, who will be guardian of your minor children if you and their other parent die, whether your beneficiaries are to receive their inheritance outright or in trust, and, if in trust, who will serve as trustee.
Q: If I have a Will does that avoid probate?
A: No. However, having a Will allows you to designate who should be Personal Representative (Executor), Guardian, Trustee and how your assets should be divided. These are decisions you probably don't want to leave up to someone else to make.
Q: Where should I keep my Will?
A: Your Will should be kept in a place where it is safe from theft, damage or destruction such as a safe-deposit box or fire safe box. You may also deposit it with the Register in Probate in the county where you reside for a nominal fee. Make sure your designated Personal Representative knows where the Will is located.
Q: What's the difference between a "testamentary trust" and a "living trust"?
A: A testamentary trust is one created by your Will (your Last Will and Testament). It is common for parents of minor children to create a trust under their Will to provide for their children until they are old enough to manage the assets themselves, although a trust can be created for nearly any situation. The trust is only created if the circumstances you specify in your Will are present at the time you pass away, such as your children have not reached a certain age.
A living trust (also known as an intervivos trust) is one you create while you are alive. These can be revocable or irrevocable. In most instances you act as the initial trustee and control your property as long as you are alive and a successor trustee is appointed after your death. A living trust will avoid probate as to assets placed into the trust. However, because assets are titled in the name of the trustee of the trust it can be more difficult for you to sell or transfer the trust assets while you are alive.
Traffic
Q: Is a zero point total good or bad?
A: Good. All drivers with a good driving record have 0 points. If you receive a citation and are subsequently convicted, demerit points will be assessed.
Q: How many points can I have?
A: If you accumulate 12 or more demerit points in any 12 month period, based upon the date of violation, your driving privileges will be suspended.
Q: What if I accumulate demerit points while I have a probationary license?
A: The points listed on your citation are only an estimated demerit point total. If you hold a probationary license when the conviction is entered onto your record, points will be doubled for any second or subsequent conviction except for vehicle equipment violations like a "defective speedometer".
Q: Is there any way I can reduce my points?
A: Yes. It is always good to consult with an attorney if you are unsure of the effect a citation will have on your driving privileges. An attorney may be able to have your citation amended to reduce the amount of demerit points assessed against you. Additionally, the State of Wisconsin will allow those persons who have completed an approved Traffic Safety course to request that a three demerit point reduction be taken. Traffic Safety courses are usually offered at your local technical college. You are limited to a demerit point reduction after taking such classes once every five years.
Personal Injury
Q: Is it true that I can hire a lawyer on a contingency fee basis and not pay anything up front?
A: Yes. Most attorney will represent persons injured in an automobile, dog bite, or other accident by entering into a contingency fee arrangement whereby the attorney will be paid by keeping a percentage of the total settlement or court award resulting from your injury.
Q: What will the insurance company for the person who injured me do about my claim?
A: After the insurance company has been notified about the claim, a file is established on you and your case. An insurance claims adjustor is assigned to your file and will perform an independent investigation of your claim to ascertain who is at fault, potential witnesses, and the content of any police reports. That adjustor will also be contacting you to take your statement. It is highly advisable to consult with a skilled personal injury attorney prior to providing any statement to an insurance company. The information that you give may be used against you in the future when you are trying to settle the claim. If you are in need of some assistance with your injury claim, please call Mills & Boehm, LLP at (262) 353-7311.
Q: How does an insurance company put a value on my file?
A: There are many factors that an insurance company will take into consideration when trying to determine the value of your claim. In addition to the medical bills, and insurance company should be considering lost wages, the quality of witnesses, any permanent injuries which have resulted from the accident, and the overall strength of your claim. Usually, the claims adjustor will first provide a certain "set aside" as a potential value of your claim. This figure is referred to as your "reserve". Such reserves are the maximum value the insurance company has established for your claim. These reserves often change as the case progresses and will often change once an attorney is representing your interests.
Q: How long will it take to settle my claim?
A: In many cases involving clear-cut liability and minimal injuries, a claim can be resolved in a few months. For more extensive injuries, a settlement demand is not usually made until all of the medical treatment has ended and you have reached a "healing plateau". In cases where surgery is required or there are permanent injuries, settlement may not come for over a year if the person is still being rehabilitated. In Wisconsin, you generally have three year from the date of accident by which you must file a lawsuit. That does not mean that you will always have to file a lawsuit to settle your claim, but if your claim does not settle within three years and you have not filed a lawsuit, your claim for money damages will be lost forever. Always consult with a qualified attorney regarding the applicable statue of limitations for filing your claim.