Estate Planning & Probate Attorneys in Racine, WI

Helping Secure You & Your Family A Better Future

Have peace of mind about you or your family’s future when you work with trusted attorneys at Knuteson, Hinkston & Rosenberg, S.C. to guide you in estate and will planning, as well as the probate process. If you need to prepare your will, powers of attorney, a revocable or irrevocable trust, guardianship and conservatorship orders, or other estate planning services, we can handle it for you. Our team of attorneys has the expertise and knowledge to help you sift through your assets, distribute property accordingly, and much more. We will make sure that any documents are executed correctly and fit your personal circumstances.

Speak with an estate planning attorney today. Call 262-633-2000.

What is Estate Planning?

Estate planning covers a variety of practices and documents that allow people to maintain greater control over their lives and assets as they age, as well as distribute their property according to their wishes after they have passed on from life. Many people see estate planning as an unnecessary or depressing process, but in reality, it makes your experiences much more enjoyable and relaxing during the best years of your life. Depending on your specific goals and needs, you should consider using some or all of the following documents to incorporate into your estate plan.
What is Durable Power Of Attorney?

The durable power of attorney is also sometimes called a “power of attorney for finances” or “financial power of attorney.” This document designates a trusted person to act as your agent and attorney, and gives that person many general powers. These powers may include, but are not limited to:

  • The ability to move money and funds around throughout your financial accounts.
  • The authorization to sign contracts or other legal documents on your behalf.
  • The power to invest and manage your other hard assets.

The durable power of attorney is usually used for convenience by people who are either mentally or physically incapable of handling their personal matters alone. Since all estate planning documents must be signed while the person executing them is in sound mind, it is important to plan ahead for unforeseen circumstances, such as being simply unavailable or incapacitated by illness.

A durable power of attorney can help prevent the necessity for the local government to appoint a guardian over a vulnerable person. A durable power of attorney allows a trusted person to do everything a formal guardian would be able to do, but in a more private, comfortable, and less expensive manner. Due to the large amount of power over assets and finances that is included in the power of your designated attorney, it is important to choose an individual that you trust in confidence.

Why is a Power of Attorney Beneficial in Healthcare?
Similarly to the durable power of attorney for finances, a healthcare power of attorney allows a trusted person to serve as your agent and attorney regarding healthcare decisions that you are unable to make due to being physically or mentally incapacitated. This becomes very useful if a sudden health crisis occurs, such as being put under anesthesia for surgery or entering a coma. Another common scenario when a healthcare power of attorney becomes necessary is when individuals suffer from degenerative brain diseases, such as Alzheimer’s or general dementia. It is important to contact an attorney to draft a power of attorney for healthcare well before you ever expect to encounter these types of dire health scenarios, since an incapacitated person can no longer execute legal documents such as a power of attorney.
What is a Will?
A will is a written document signed by a person while he or she is still alive which describes how that person desires to distribute his or her property upon death. The person who signs the will is referred to as the “testator.” A person who receives property under the will can be referred to as a “beneficiary.” The will should also stipulate who will serve as the “personal representative” of the estate—which is the person given legal authority to distribute the testator’s assets. Outside of Wisconsin, this role is sometimes referred to as the “executor” of the estate. The personal representative/executor has legal duties to ethically and prudently manage the estate.
What is a Living Will?
Living wills are fairly straight-forward documents that allow you to make a statement regarding whether you would like to be removed from life-support devices in the event that your future health declined to a vegetative state. Many people decide that the quality of life and personal dignity in such circumstances is not worth preserving on life support machines. However, living wills involve complex and deeply emotional decisions that should be consulted with your family members and loved ones.

It is impossible to predict the future, or even new medical developments that might become available. Therefore, drafting a living will should be done only after careful thought and consideration. Oftentimes, your estate planning attorney will draft a power of attorney for healthcare to coincide with the living will, so that both documents can cover any future healthcare decisions. You should designate a trusted person to act as your healthcare power of attorney for making any decisions that are unrelated to life-support during a vegetative state.

Estate Planning FAQ’s

Questions? We have the answers for you. 

What is estate planning?

Estate planning is the task of deciding what happens to one’s assets after they die. More
specifically, it is the planning of how property — such as houses, cars, and bank accounts — will be protected and transferred to one’s heirs. This can be accomplished through many tools, including the drafting of wills, forming trusts, and organizing assets so that the distribution of property to heirs is as stress-free as possible.

What is an “estate”?

Put simply, an estate is all the money and property that someone owns at the time of their death. Property, however, is not just land. It includes real estate, possessions, and intangible property — stocks. This means that someone’s estate may include a house, cars, bank accounts, business ownership, and even pets!

What is a will, and do I need one?

A will, sometimes called a “last will and testament,” is a document that states both how and who will inherit one’s assets when they die. This document also names a third-party who administers the estate and helps distribute the assets to the heirs. A will is an important tool to protect your assets and help your family know how you would like your property and possessions distributed after you die.

When should I begin estate planning?

While many wait until later in their life to begin their estate plan, it is important to start
certain aspects of estate planning as soon as you become a legal adult. As you turn 18, you are personally responsible for decision-making over your finances and healthcare. If you become harmed or incapacitated, having a plan in place for how decisions will be made on your behalf ensures that your wishes are protected.

Do I need an estate plan if I don’t have many assets?

Definitely. An estate plan is important no matter how big or small your estate is. Aside from protecting those assets, it is vital to make sure the decision-making responsibilities over your finances and healthcare are properly delegated. There are also certain ways to avoid probate for
especially small estates — speak to your attorney to discuss your options.

What happens if I can’t make my own medical or financial decisions anymore?

If you become incapacitated or are unable to make your own medical and financial decisions, it is important to have a power of attorney already executed. A power of attorney is a document, separate from a will, that lets you designate who will handle your personal decisions if you are unable to do so yourself. The two most common types of these are the power of attorney for healthcare and the power of attorney for finances.

What happens if I die without a will?

If someone dies without a will, they are considered “intestate” which mean that their assets will be distributed to their heirs based on the default laws of the state. Because the state’s laws are blanket rules, they won’t be able to consider your personal wishes after you die. Certain default protections in the law may cause roadblocks for estate distribution, costing extra time and money. Be sure to speak to your attorney about executing a will so that you have control over the decisions that default laws don’t address.

What is a trust, and do I need one?

A trust is a legal entity — separate from one’s estate — that is used to hold and manage assets. The creator of the trust transfers ownership of their personal assets from themselves to the trust. This removes the assets from their estate, and avoids the probate process. When someone creates
a trust, they maintain control over the assets within the trust as the “trustee”. After death, control over the trust will be easily transferred to the new “trustee” designated to manage the trust. Trusts can be used for an assortment of reasons, the most common of which is to avoid the struggles of probate and the hassle of court after one dies.

Should I hire a lawyer, or can I do it myself?

Hiring a lawyer for this process can help navigate the complicated legal aspects of estate planning. Often, one mistake or omission in the estate planning documents can cause the state’s default rules to kick in, resulting in deviations from your original wishes. A lawyer can ensure that all the bases are covered, help discuss the impact of each strategic option, and avoid dispute or risk.

Can my spouse and I organize our estate plan together?

Yes. There are tools and strategies to help you and your spouse organize your estate plan together. In Wisconsin, generally, property between spouses is held jointly as “marital property”. Sometimes it will be beneficial to go beyond this by creating trusts, and joint wills. Every estate planning situation is different, so speak to your attorney to learn about your options.

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What is Probate Administration?

The probate process is a set of procedures in which a deceased person’s will is declared valid by the probate court. The court then grants authority to the individual(s) named as personal representative(s) in the will to settle the estate and transfer the deceased person’s property to the appropriate beneficiaries or heirs. Sometimes personal representatives are referred to as “executors” outside of Wisconsin. Personal representatives are usually entitled to 2% of the estate’s value for the service and time they provide in managing the estate.
What if you do not have a will?
If the decedent does not have a will, then the probate judge will usually select one of the heirs to serve as the personal representative. The personal representative must follow the will’s directions in distributing the assets, or else distribute the assets according to the default intestacy rules in Wisconsin if the person died without a will. These default intestacy rules usually give priority to surviving spouses, children, parents, siblings, and then more distantly related biological relatives in a descending order.

For example, if a person dies with no spouse or children, and also does not have a will prepared, his parents would receive all of his estate’s assets. If the person did not have parents either in the same situation, then his assets would be distributed to his living siblings. Once the assets have all been retitled and given to the appropriate beneficiaries or heirs, the personal representative must file a final account of the estate’s assets to close the probate action. The final account lists the value of the assets and gives the court a record of how they were distributed.

Frozen Assets
If a deceased person gives away or otherwise legally transfers title to certain items of property before death, then those items are generally not considered part of the person’s estate and are therefore not subject to the probate process. This often occurs when people designate beneficiaries on their investment accounts, such as 401k or IRA plans. Since the beneficiaries are already named on the accounts, the money can usually be distributed to them directly after the decedent has passed away without involving the probate court.

But sometimes a decedent’s assets are essentially “frozen” after his or death because the assets remain titled in the decedent’s name. For example, a deceased person’s bank account, safety deposit box, or home residence might be titled solely in that person’s name. The bank often won’t allow anyone to access the deceased person’s funds or safety deposit box without official authorization from the probate court. In the case of a piece of real estate, the court must grant authorization to the personal representative to sign a new deed transferring the real estate to living heirs. The authorization itself comes in the form of domiciliary letters, which are official documents stamped by the probate court to empower the personal representative. The domiciliary letters allow the personal representative to access, move, and distribute all of the deceased person’s assets freely.

Complicated Process
Probate administration can be a daunting and intimidating task for personal representatives to navigate, especially if any interested party decides to bring a claim to challenge the will as invalid or otherwise disputes actions taken by the personal representative. Personal representatives have important fiduciary duties and can be penalized and fined by the probate court for not following the directions in the will or failing to conserve and maintain the estate’s assets, among other things. If you are named as a personal representative and are confused about your responsibilities, contact a probate attorney to advise you.
How long does the probate process take?
Probate law involves a decent amount of accounting, as various forms that track and list the estate’s assets and values must be filed with the probate court. It takes at least three-and-a-half months for a probate action to be completed, but they often take between six months to a year. A notice to creditors must also be published in a local newspaper, which alerts any creditors of the decedent that the estate has been opened in probate and claims may now be filed.

Common third party creditor claims against the estate include unpaid hospital, ambulance, funeral, and credit card bills. The personal representative must pay these claims, if they are indeed valid, using the estate’s assets. After three-and-a-half months, the creditor period will close and no further claims may be brought.

There are many other technical and specific probate documents that must be filed by the personal representative to move the process along and eventually close the estate. If you are confused about the formal procedures, contact a probate attorney to make sure all forms are completed accurately and correctly.

Will Contests & Other Disputes
Sometimes other family members, interested parties, or even heirs themselves file claims against the estate due to disagreements with the way the personal representative is handling the estate or to challenge the validity of the will. Will contests usually boil down to alleging that the decedent signed the will through undue influence of a third party, without the mental capacity to understand what he or she was signing, or without two uninterested witnesses present.

If a will is successfully invalidated by the contesting party, then the estate will revert to being distributed under the default Wisconsin intestacy rules to biological heirs. It is unwise to enter any probate litigation without an attorney, so retain legal counsel as soon as possible if you find yourself defending or challenging an estate’s administration.

Avoiding Probate
The main way to avoid probate is by having proper estate planning documents in place before someone’s death. Transfer on death deeds can be used to quickly and efficiently transfer real estate from a decedent to his or her heirs without going through probate. Transferring assets into a revocable or irrevocable trust also avoids probate, since the assets are owned by the trust rather than the decedent or the estate.

Simply gifting items away during one’s life will also eliminate those particular assets from a later probate estate, however, there may be important tax implications to consider. If you would like to explore alternatives to probate, contact an estate planning attorney to make sure that your estate transitions smoothly and without the headache of probate court.

Transfer by Affidavit for Smaller Estates
A Wisconsin-specific alternative to probate is the transfer by affidavit document for estates valued at $50,000.00 or less. This procedure allows an interested party to transfer title of the decedent’s property without going through the probate process if the property is valued at $50,000.00 or less in total. All an interested party must do is sign the document and list the decedent’s property on the form.

However, it is still important to consult an attorney when preparing a transfer by affidavit to ensure it is done legally and will be successfully accepted by banks and other institutions holding the decedent’s assets. Many out-of-state financial institutions are skeptical or have not heard of Wisconsin’s transfer by affidavit process before, and may ask for domiciliary letters and a probate instead.

Probate FAQ’s

Questions? We have the answers for you. 

What is probate?

Probate is the legal procedure of distributing one’s assets to their heirs after they die. This
process uses the will as a set of instructions to determine how and to whom the assets will be distributed. A personal representative, also called an “executor”, is named by the will or the court to oversee the probate process. The goal of this endeavor is to protect the rights of heirs, satisfy the estate’s debts, and determine what is owed in remaining taxes.

Should you avoid probate?

It is generally a good idea for families to avoid probate due to its complicated and daunting
nature. The process involves a decent amount of accounting and specific probate documents. Additionally, the structure and details of a will is oftentimes too strict that menial issues arise regarding language and legal requirements. Another issue that can arise is that of legal claims by an heir. These disputes between heirs can drag out the probate process, costing valuable time and
resources.

I was named as an executor for someone’s estate. What does that mean?

An executor, also called a “personal representative”, is the person designated by someone’s will to oversee the legal administration of their estate after they die. If you are named as the executor of someone’s estate, you will be accountable to the heirs, and likely supervised by a
probate court. Ultimately, the goal of the executor is to ensure an orderly administration of the decedent’s estate.

How much does probate cost, and how long does it take?

The cost of probate varies from case to case, depending on how complex your situation is.
Factors that may change the cost of probate include the size of the estate, estate plans, and whether anyone contests the will. The ultimate cost of the process can easily be from 3% to 7% of the total value of the estate. Within this total includes appraisal costs, executor’s fees, court fees, costs for insurance, legal and accounting fees. On average, the probate process in Wisconsin can take six months to about a year.

Is probate still required if there aren’t many assets in the estate?

Yes, there are still procedures that are required by the state to administer the decedent’s estate. However, like many states, Wisconsin offers simplified “summary procedures” for estates of $50,000 or less. This may be a process as simple as “transfer by affidavit” in which the estate is transferred by a written statement. There are still requirements to be aware of through these procedures, so be sure to consult an attorney.

How are my debts handled after I die?

When someone dies, creditors are notified as part of the probate process. This may be in the form of a letter or publication in the newspaper, depending on the laws of the state. After notice, creditors have a window of time to contact the probate court or the executor regarding their claims. Then, the debts are either paid out of the estate, or rejected. If rejected, the creditor may
sue the estate for payment. In the case that the estate does not have enough funds to pay the debts, the law will dictate which creditors get payed first. The property in the estate may have to be sold to satisfy the debts, however the executor does not have any obligation to pay the debts out of their own pocket.

How can I avoid probate?

A trust is a legal entity — separate from one’s estate — that is used to hold and manage assets. The creator of the trust transfers ownership of their personal assets from themselves to the trust. This removes the assets from their estate, and avoids the probate process. When someone creates
a trust, they maintain control over the assets within the trust as the “trustee”. After death, control over the trust will be easily transferred to the new “trustee” designated to manage the trust. Speak to your attorney to discuss your other options for avoiding probate.

Do I you pay taxes through the probate process?

The executor of your estate will have the responsibility of filing the appropriate tax forms for federal and state taxes. These forms include a “Final Form 1040 Federal Income Tax return”, and other forms for federal gift and estate taxes, and property taxes. Since 2012, Wisconsin has eliminated their estate tax. As issues arise through the tedious accounting and compliance, an
attorney may be helpful to assure all is in order.

Do I need to hire a lawyer for probate?

Hiring a lawyer is not required for probate, however seeking representation can offer
protection and ease throughout the process. The executor will typically choose to hire a lawyer to offer legal advice and represent them during the in-court probate proceedings. As the executor, you can be held legally accountable for decisions during probate, so a lawyer will be helpful to avoid liability and issues that may arise.

What happens if someone disputes a will?

A will contest is typically started to remove an executor, or when heirs or potential heirs
don’t feel like they received what they deserved from the estate. The contest must be filed according to the state’s strict probate requirements and deadlines — and few people are ever successful. These battles are very costly in time and resources, causing extreme delays to the probate process.

Choose a firm you can count on.

Contact Knuteson, Hinkston & Rosenberg, S.C.

Knuteson, Hinkston & Rosenberg, S.C.

500 College Ave
Racine, WI 53403

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Phone: 262-633-2000
Fax: 262-633-9900
Email: cfrazer@khrlawyers.com

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Monday - Friday: 8:30 AM - 5:00 PM

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