Helping Secure You & Your Family A Better Future

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.

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!

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.

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.

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.

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.

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.

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.

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.

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.