Helping Secure You & Your Family A Better Future

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.

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.

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.

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.

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.

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.