Category: Heirs

Options in Managing Unequal Inheritances

Options in Managing Unequal Inheritances

Estate planning attorneys aren’t often asked to create estate plans treating heirs unfairly. However, when they do it usually is because a parent is estranged from one child and wishes to leave him or her nothing. When it comes to estate planning, equal isn’t the same as fair, explains the article “Are Unequal Inheritances Fair?” from Advisor Perspectives. There are options in managing unequal inheritances in your estate planning.

An example of this can be seen in the case of a widow with four adult children who asked an estate planning attorney how to approach distributing her assets. Three of her children were high-income earners, already building substantial net worth. A fourth child had mental health issues, limited education, had been in and out of jail and was unable to hold a job.

She understood that her fourth child needed the financial stability the others did not. She wanted to provide some support for him, but knew any money left directly to him would be gone quickly. She was considering leaving money for him in a trust to provide a monthly income stream, but also wanted to be fair to the other three children.

The trust would be the best option. However, there were problems to consider. If the estate were to be divided in four equal parts, the fourth child’s share of the estate would be small, so trustee fees would take a significant amount of the trust. If she left her entire estate for him, it would be more likely he’d have funding for most, if not all, of his adult life.

The worst thing the mother could do was to leave all the funds for the fourth child in a trust without discussing it with the other three siblings. Unequal inheritances can lead to battles between siblings, sometimes bad enough to lead them into a court battle. This is often the case where one child is believed by others to have unduly influenced a parent, when they have inherited all or the lion’s share of the estate.

Sibling fights can occur even when the children know about and understand the need for the unequal distribution. The children may suppress their emotions while the parent is living. However, after the parent dies and the reality sets in, emotions may fire at full throttle. Logically, in this case the three successful siblings may well understand why their troubled sibling needs the funds. However, grief is a powerful emotion and can lead to illogical responses.

In this case, the woman made the decision to leave her estate in equal shares to each child and giving the three successful siblings the options to share part of their inheritance with their brother. She did this by having her estate planning attorney add language in the will stating if any child wanted to disclaim or refuse any of their inheritance, it would pass to a trust set up for the troubled sibling. This gave each child the opportunity to help or not.

Was it a perfect solution? Perhaps not, but it was the best possible solution given the specific circumstances for this family. Speak with your estate planning attorney about your options in managing unequal inheritances. If you would like to learn more about inheritances, please visit our previous posts. 

Reference: Advisor Perspectives (Aug. 22, 2022) “Are Unequal Inheritances Fair?”

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Estate Planning is critical for Blended Families

Today, a blended family is more common than ever, with stepfamily members, half-siblings, former spouses, new spouses and every combination of parents, children and partners imaginable. Traditional estate planning, including wills and non-probate tools like transfer on death (TOD) documents, as valuable as they are, may not be enough for the blended family, advises a recent article titled “Legal-Ease: Hers, his and ours—blended family estate planning” from limaohio.com. Estate planning is critical for blended families.

Not too long ago, when most people didn’t take advantage of the power of trusts, couples often went for estate plans with “mirror” wills, even those with children from prior marriages. Their wills basically said each spouse would leave the other spouse everything. This will would be accompanied by a contract stating neither would change their will for the rest of their lives. If there was a subsequent marriage after one spouse passed, this led to problems for the new couple, since the surviving spouse was legally bound not to change their will.

As an illustration, Bob has three children from his first marriage and Sue has two kids from her first marriage. They marry and have two children of their own. Their wills stipulate they’ll leave each other everything when the first one dies. There may have been some specific language about what would happen to the children from the first marriages, but just as likely this would not have been addressed.

It sounds practical enough, but in this situation, the children from the first spouse to die were at risk of being disinherited, unless plans were made for them to inherit from their biological parent.

Todays’ blended family benefits from the use of trusts, which are designed to protect each spouse, their children and any child or children they have together. There are a number of different kinds of trusts for use by spouses only to protect children and surviving spouses.

Trust law requires the trustee—the person who is in charge of administering the trust—to give a copy of the trust to each beneficiary. The trustee is also required to provide updates to beneficiaries about the assets in the trust.

A surviving spouse will most likely serve as the trustee when the first spouse passes and will have a legal responsibility to honor the shared wishes of the first spouse to pass.

If you and your new spouse have created a blended family, it is critical to evaluate your estate planning. Your estate planning attorney will be able to explain the many different types of spousal trusts, and which is best for your situation. If you would like to learn more about estate planning for blended families, please visit our previous posts. 

Reference: limaohio.com (Aug. 20, 2022) “Legal-Ease: Hers, his and ours—blended family estate planning”

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Estate Planning should include Consideration of Income Tax

Estate Planning should include Consideration of Income Tax

While estate taxes may only be of concern for mega-rich Americans now, in a relatively short time, the federal exemption rate is scheduled to drop precipitously. Estate planning underway now should include consideration of income tax issues, especially basis, according to a recent article titled “Be Mindful of Income Tax in Estate Planning, Particularly Basis” from National Law Journal.

Because of these upcoming changes, plans and trusts put into effect under current law may no longer efficiently work for income tax and tax basis issues.

Planning to avoid taxes has become less critical in recent years, when the federal estate tax exemption is $10 million per taxpayer indexed to inflation. However, the new tax laws have changed the focus from estate tax planning to coming tax planning and more specifically, to “basis” planning. Ignore this at your peril—or your heirs may inherit a tax disaster.

“Basis” is an oft-misunderstood concept used to determine the amount of taxable income resulting when an asset is sold. The amount of taxable income realized is equal to the difference between the value you received at the sale of the asset minus your basis in the asset.

There are three key rules for how basis is determined:

Purchased assets: the buyer’s basis is the investment in the asset—the amount paid at the time of purchase. Here’s where the term “cost basis” comes from

Gifts: The recipient’s basis in the gift property is generally equal to the donor’s basis in the property. The giver’s basis is viewed as carrying over to the recipient. This is where the term “carry over basis” comes from, when referring to the basis of an asset received by gift.

Inherited Assets: The basis in inherited property is usually set to the fair market value of the asset on the date of the decedent’s death. Any gains or losses after this date are not realized. The heir could conceivably sell the asset immediately and not pay income taxes on the sale.

The adjustment to basis for inherited assets is usually called “stepped up basis.”

Basis planning requires you to review each asset on its own, to consider the expected future appreciation of the asset and anticipated timeline for disposing the asset. Tax rates imposed on income realized when an asset is sold vary based on the type of asset. There is an easy one-size-fits-all rule when it comes to basis planning.

Estate planning requires adjustments over time, especially in light of tax law changes. This is why estate planning should include consideration of income tax issues. Speak with your estate planning attorney, if your estate plan was created more than five years ago. Many of those strategies and tools may or may not work in light of the current and near-future tax environment. If you would like to learn more about tax issues related to estate planning, please visit our previous posts. 

Reference: National Law Review (July 22, 2022) “Be Mindful of Income Tax in Estate Planning, Particularly Basis”

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Grounds for Contesting a Will

Grounds for Contesting a Will

As a beneficiary of a will, if you don’t agree with how the assets are being distributed, you may have grounds for contesting the will. MSN’s recent article entitled “Contesting a Will? You Might Not Need a Lawyer” says to do this you must have a legitimate legal reason to challenge the will, such as one of the most common arguments:

  • Lack of mental capacity. If the person making the will (the “testator”) wasn’t “of sound mind,” he or she may not understand their decisions. The testator must be able to understand what they own, who their natural heirs are and what they are giving and to whom.
  • Fraud, undue influence, or forgery. Some people are tricked into signing a will, are forced to create a will under duress, or have their signature forged.
  • Multiple wills. In this situation, the one that was made most recently is often the one that the courts will decide is valid. However, wills created immediately before death may be contested due to undue influence, lack of mental capacity, or other reasons.
  • The state requirements aren’t met. Every state has specific requirements as to what must be in a will, the way in which it’s signed and the number of witnesses required. If these elements aren’t met, then the will may not be valid.
  • Location. Some states may not recognize wills created in another state.

To contest the will, you must have grounds, or legal standing, which means you must meet one of these requirements:

  • A prior will designates you as a beneficiary;
  • The current will designates you as a beneficiary;
  • You’re the beneficiary of a more recent will made after the one in question; or
  • You would be an heir if there was no will, and the state’s laws of intestacy were applied.

Your attorney will next file a petition in the state probate court where the estate is under probate. This tells the probate court that you are a beneficiary and the estate that you are contesting the will. If your case is not settled, it goes to court where you’ll make your argument as to why the will should be changed. The court will decide the outcome of your case.

A way to keep family members  from fighting over an estate is add a no-contest clause into the will. This disinherits any beneficiary who challenges a will, if their challenge fails. In order words, if you don’t win your challenge, you get nothing from the estate. If you would like to read more about wills and probate, please visit our previous posts.

Reference: MSN (May 30, 2022) “Contesting a Will? You Might Not Need a Lawyer”

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Becoming an Executor should be considered Carefully

Becoming an Executor should be considered Carefully

Becoming an executor should be considered carefully before accepting or refusing. These decisions are usually made based on relationships and willingness to help the family after a loved one has died. Knowing certain processes are in place and many are standard procedures may make the decision easier, according to the useful article “Planning Ahead: Should you agree to serve as an executor?” from Daily Local News.

A family member or friend is very often asked to serve as executor when the surviving spouse is the only or primary beneficiary and not able to manage the necessary tasks. In other instances, estates are complex, involving multiple beneficiaries, charities and real estate in several states. The size of the estate is actually less of a factor when it comes to complexity. Small estates with debt can be more challenging than well-planned large estates, where planning has been done and there are abundant resources to address any problems.

Prepare while the person is alive. This is the time to learn as much as you can. Ask to get a copy of the will and read it. Who are the beneficiaries? Speak with the person about the relationships between beneficiaries and other family members. Do they get along, and if not, why? Be prepared for potential conflict with the estate.

Find out what the person wants for their funeral. Do they want a traditional memorial service, and have they paid for the funeral already? Any information they can provide will make this difficult time a little easier.

What are your responsibilities as executor? Depending on how the will is prepared, you may be responsible for everything, or your responsibilities may be limited. At the very least, the executor of an estate is responsible for:

  • Locating and preparing an inventory of assets
  • Getting a tax ID number and establishing an estate account
  • Paying final bills, including funeral and related bills
  • Notifying beneficiaries
  • Preparing tax returns, including estate and/or inheritance tax returns
  • Distributing assets and submitting a final accounting

If the person has an estate planning attorney, financial advisor and CPA, meeting with them while the person is alive and learning what you can about the plans for assets will be helpful. These three professional advisors will be able to provide help as you move forward with the estate.

These tasks may sound daunting but being asked to serve as a person’s executor demonstrates the complete trust they have in your abilities and judgment. Therefore, becoming an executor should be considered carefully. Yes, you will breathe a sigh of relief when you complete the task. However, you’ll also have the satisfaction of knowing you did a great service to someone who matters to you. If you would like to learn more about the role of the executor, please visit our previous posts. 

Reference: Daily Local News (June19, 2022) “Planning Ahead: Should you agree to serve as an executor?”

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Strategies to reduce Generation-Skipping Transfer Tax

Strategies to reduce Generation-Skipping Transfer Tax

The unified estate and gift tax exemption increased from $5 million to $10 million, with inflation indexing stands at $12.06 million in 2022. A married couple can shelter as much as $24.12 million from the federal estate tax. However, what about assets you gift or leave in your will to grandchildren, asks a recent article titled “Beware the Generation-Skipping Transfer Tax” from CPA Practice Advisor. There are strategies to reduce the generation-skipping transfer tax.

Without proper estate planning, the Generation-Skipping Transfer Tax (GSTT) may be imposed on families who aren’t prepared for it. There are some strategies to work around the GSTT. However, you’ll need to get this done in advance of making any gifts or before you die.

The GSTT was created to prevent wealthy individuals from getting too far around the estate and gift rules through generation-skipping transfers, as the name implies. A simple explanation of the tax is this: the tax applies to transfers to related individuals who are more than one generation away—that would be grandchildren or great grandchildren—and any unrelated individuals more than 37 ½ years younger. They are known as “skip persons.”

Transferring assets to a trust and naming grandchildren or a much younger person as the ultimate beneficiary doesn’t work to avoid the GSTT. If you took this route, all of the trust beneficiaries, which could also be adult children, would be treated as skip persons. Even the trust itself may be considered a skip person, in certain circumstances.

The rules for the GSTT are the same as apply to federal estate taxes. The top tax rate for the GSTT is 40%, the same rate for federal estate taxes. The GSTT also shares the same exemption rate, indexed for inflation, as the federal estate tax.

However, remember what’s coming. In 2026, the exemption is scheduled to revert to $5 million, plus inflation indexing. If Congress enacts any other legislation before then, it will change sooner.

There’s more. There is a GSTT exemption for lifetime transfers aligned with the annual gift tax exclusion. You may gift up to $16,000 per recipient, including a grandchild or other descendent, every year, without triggering a GSTT bill.

Talk with your estate planning attorney to see if these three strategies are appropriate for you to avoid or reduce the Generation-skipping transfer tax:

  • Make the most of the GSTT exemption. Even though lifetime transfers do reduce the available estate tax shelter, the current $12.06 million exemption provides a lot of flexibility.
  • You can use the annual gift tax exemption to shelter tax gifts up to $16,000 above and beyond the lifetime exemption. Use this before the lifetime exemption.
  • Always look to see how trusts within the usual tax law boundaries can be used to protect assets from taxes.

If you would like to learn more about strategies to reduce estate taxes, please visit our previous posts. 

Reference: CPA Practice Advisor (June 3, 2022) “Beware the Generation-Skipping Transfer Tax”

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Firearms can be included in your Estate Plan

Firearms can be included in your Estate Plan

It’s common to focus on the big assets when creating an estate plan, like the family home, investment accounts and life insurance, but personal property also needs to be addressed, especially if the items are of great value or if ownership is complicated. This is especially the case regarding firearms, discussed in a recent article, “In the Crosshairs: Guns in Estate Planning” from The National Law Review. Firearms can be included in your estate plan.

Your executor, personal representative or successor trustee is the person who takes on the fiduciary role of administering your estate, according to the directions in your last will and testament. What seems like a relatively simple transfer of your favorite shotgun to a family member could lead to serious legal problems, if the family member is a “prohibited person.”

The Gun Control Act of 1968 made it unlawful for certain people to ship, transport, receive or possess firearms or ammunition. This group includes persons with mental illness, felons, dishonorable discharges or domestic violence convictions. Unless your executor knows the family member and can confirm they do not belong to any of these categories, the transfer and receipt of the firearm could constitute criminal behavior.

Geography could be an issue as well. A federal firearms license holder must be used to transfer the firearm, if the recipient lives in a different state. Since guns laws vary widely throughout the US, transfers are not straightforward. Something perfectly legal in one state may be a felony in another.

Laws about guns and related devices change also. After a mass shooting event in Las Vegas in 2017, the bump stock, a device used to allow more shots to be fired from an assault weapon was made illegal and owners were advised to surrender or destroy any bump stocks in their possession. If the fiduciary doesn’t know anything about firearms, they may unwittingly commit a felony.

The risks of transferring firearms can be addressed with informed planning. Gun trusts are used to protect and plan, especially for unique items like registered machine guns, suppressors, short barrel rifles and short barrel shotguns.

Firearms can be included in your estate plan. In recent years, the gun trust use has expanded to collectible firearms to preserve their use for future generations. Collectable firearms often are as expensive as collectible cars, so care must be taken to properly preserve and transfer them.

If firearms are in your home and you wish to pass them along to another family member, the best way to do this is with the help of an experienced estate planning attorney who can create a gun trust and help determine if the intended heir is permitted to inherit a gun. If you would like to learn more about addressing personal property in your planning, please visit our previous posts. 

Reference: The National Law Review (May 10, 2022) “In the Crosshairs: Guns in Estate Planning”

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Tips to avoid a Contested Will

Tips to avoid a Contested Will

A last will and testament is the document used to direct your executor to distribute assets and property according to your wishes. However, it’s not uncommon for disgruntled or distant family members or others to dispute the validity of the will. There are tips to avoid a contested will. A recent article titled “5 Reasons A Law Will May Be Contested” from Vents Magazine explains the top five factors to keep in mind when preparing your will.

Undue influence is a commonly invoked reason for a challenge. If a potential beneficiary can prove the person making the will (the testator) was influenced by another person to make decisions they would not have otherwise made, a will challenge could be brought to court. Undue influence means the testator’s decision was significantly affected by a person who stood to gain something by the outcome of the will and made a concerted effort to change the testator’s mind.

Even if there was no evidence of fraud, any suspicion of the testator’s being influenced is enough for a court to accept a case. If you think someone unduly influenced a loved one, especially if they suffer from any mental frailties or dementia, you may have cause to bring a case.

Outright fraud or forgery is another reason for the will to be contested. If there have been many erasures or signature styles appear different from one document to another, there may have been fraud. An estate planning attorney should examine documents to evaluate whether there is enough cause for suspicion to challenge the will.

Improper witnesses. The testator is required to sign the will with witnesses present. In some states, only one witness is required. In most states, two witnesses must be present to sign the will in front of the testator. A beneficiary may not be a witness to the signing of the will. Some states have changed laws to allow for remote signings in response to COVID. If the rules have not been followed, the will may be invalid.

Mistaken identity seems farfetched. However, it is a common occurrence, especially when someone has a common name or more than one person in the family has the same name, and the document has not been properly signed or witnessed. This could create confusion and make the document vulnerable to a challenge. An experienced estate planning attorney will know how to prepare documents to withstand any challenges.

Capacity in the law means someone is able to understand the concept of a will and contents of the document they are signing, along with the identities of the people to whom they are leaving their assets. The testator doesn’t need to have perfect mental health, so people with mild cognitive impairments, such as depression or anxiety, may make and sign a will. A medical opinion may be needed, if there might be any doubt as to whether a person had testamentary capacity when the will is signed.

A contested will can be time-consuming and expensive, so keep these tips in mind to avoid it, especially if the family includes some litigious individuals. If you would like to learn more about drafting a will, please visit our previous posts. 

Reference: Vents Magazine (May 6, 2022) “5 Reasons A Law Will May Be Contested”

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Minimizing taxes should be a part of your plan

Minimizing Taxes should be a Part of your Plan

Let’s get this out of the way: preparing for death doesn’t mean it will come sooner. Quite the opposite is true. Most people find preparing and completing their estate plan leads to a sense of relief. They know if and when any of life’s unexpected events occur, like incapacity or death, they have done what was necessary to prepare, for themselves and their loved ones. Minimizing taxes should be a part of your plan.

It’s a worthwhile task, says the recent article titled “Preparing for the certainties in life: death and taxes” from Cleveland Jewish News and doesn’t need to be overwhelming. Some attorneys use questionnaires to gather information to be brought into the office for the first meeting, while others use secure online portals to gather information. Then, the estate planning attorney and you will have a friendly, candid discussion of your wishes and what decisions need to be made.

Several roles need to be filled. The executor carries out the instructions in the will. A guardian is in charge of minor children, in the event both parents die. A person named as your attorney in fact (or agent) in your Power of Attorney (POA) will be in charge of the business side of your life. A POA can be as broad or limited as you wish, from managing one bank account to pay household expenses to handling everything. A Health Care Proxy is used to appoint your health care agent to have access to your medical information and speak with your health care providers, if you are unable to.

Your estate plan can be designed to minimize probate. Probate is the process where the court reviews your will to ensure its validity, approves the person you appoint to be executor and allows the administration of your estate to go forward.

Depending on your jurisdiction, probate can be a long, costly and stressful process. In Ohio, the law requires probate to be open for at least six months after the date of death, even if your estate dots every “i” and crosses every “t.”

Part of the estate planning process is reviewing assets to see how and if they might be taken out of your probate estate. This may involve creating trusts, legal entities to own property and allow for easier distribution to heirs. Charitable donations might become part of your plan, using other types of trusts to make donations, while preserving assets or creating an income stream for loved ones.

Minimizing taxes should be a part of your estate plan. While the federal estate tax exemption right now is historically high $12.06 million per person, on January 1, 2025, it drops to $5.49 million adjusted for inflation. While 2025 may seem like a long way off, if your estate plan is being done now, you might not see it again for three or five years. Planning for this lowered number makes sense.

Reviewing an estate plan should take place every three to five years to keep up with changes in the law, including the lowered estate tax. Large events in your family also need to prompt a review—trigger events like marriage, death, birth, divorce and the sale of a business or a home. If you would like to read more about taxes and their influence of estate planning, please visit our previous posts. 

Reference: Cleveland Jewish News (May 13, 2022) “Preparing for the certainties in life: death and taxes”

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Roth IRAs are Powerful Retirement Savings Tools

Roth IRAs are Powerful Retirement Savings Tools

Roth IRAs are powerful retirement savings tools. Account owners are allowed to take tax-free distributions in retirement and can avoid paying taxes on investment growth. There’s little downside to a Roth IRA, according to a recent article “10 Reasons to Save for Retirement in a Roth IRA” from U.S. News & World Report.

Taxes are paid in advance on a Roth IRA. Therefore, if you are in a low tax bracket now and may be in a higher bracket later, or if tax rates increase, you’ve already paid those taxes. Another plus: all your Roth IRA funds are available to you in retirement, unlike a traditional IRA when you have to pay income tax on every withdrawal.

Roth IRA distributions taken after age 59 ½ from accounts at least five years old are tax free. Every withdrawal taken from a traditional IRA is treated like income and, like income, is subject to taxes.

When comparing the two, compare your current tax rate to what you expect your tax rate to be once you’ve retired. You can also save in both types of accounts in the same year, if you’re not sure about future tax rates.

Roth IRA accounts also let you keep investment gains, because you don’t pay income tax on investment gains or earned interest.

Roth IRAs have greater flexibility. Traditional IRA account owners are required to take Required Minimum Distributions (RMDs) from an IRA every year after age 72. If you forget to take a distribution, there’s a 50% tax penalty. You also have to pay taxes on the withdrawal. Roth IRAs have no withdrawal requirements during the lifetime of the original owner. Take what you need, when you need, if you need.

Roth IRAs are also more flexible before retirement. If you’re under age 59 ½ and take an early withdrawal, it’ll cost you a 10% early withdrawal penalty plus income tax. Roth early withdrawals also trigger a 10% penalty and income tax, but only on the portion of the withdrawal from investment earnings.

If your goal is to leave IRA money for heirs, Roth IRAs also have advantages. A traditional IRA account requires beneficiaries to pay taxes on any money left to them in a traditional 401(k) or IRA. However, those who inherit a Roth IRA can take tax-free withdrawals. Heirs have to take withdrawals. However, the distributions are less likely to create expensive tax situations.

Retirement savers can contribute up to $6,000 in a Roth IRA in 2022. Age 50 and up? You can make an additional $1,000 catch up contribution for a total Roth IRA contribution of $7,000.

If this sounds attractive but you’ve been using a traditional IRA, a Roth conversion is your next step. Roth IRAs are powerful retirement savings tools, however, you will have to pay the income taxes on the amount converted. Try to make the conversion in a year when you’re in a lower tax bracket. You could also convert a small amount every year to maintain control over taxes. If you would like to learn more about retirement planning, please visit our previous posts.

Reference: U.S. News & World Report (April 11, 2022) “10 Reasons to Save for Retirement in a Roth IRA”

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Information in our blogs is very general in nature and should not be acted upon without first consulting with an attorney. Please feel free to contact Texas Trust Law to schedule a complimentary consultation.
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