Articles Posted in Probate

The Fight Over Robin Williams' Estate ContinuesIt has been a bit over a year since the tragic death of actor and comedian Robin Williams; however, the family has yet to settle their battle over his estate. Williams took his life in August of 2014 in his California home. The actor had a Will but his kids from a previous marriage and his current wife have been battling for a year over some of the terms contained in the Will.

Williams’ wife, Susan, petitioned the court to prevent his children from taking possession of the contents of their San Francisco Bay home. She claimed the items in the home should be excluded from the estate. William’s children responded to the petition claiming their stepmother was trying to change the terms of the trust to deprive them of their father’s personal belongings and memorabilia.

Now one year later, the parties have narrowed down the fight to about 300 items and an issue regarding a monetary distribution to Williams’ widow. In June, a judge gave the parties until July 29 to settle their differences and reach an agreement. It is not clear if the parties met that deadline yet or if they will be able to settle the dispute without court intervention.

How Can I Prevent My Family From Fighting Over My Estate?

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The Final Step in the Estate Planning Process – A Family MeetingIntheden

Possibly one of the most difficult steps in the estate planning process is the final step – to have a family meeting to discuss your wishes and instructions. Your attorney has advised you on what estate documents you need to accomplish your goals and you have executed those documents; however, your family needs to understand your wishes to avoid problems after your death or incapacitation. Having a revocable living trust, irrevocable trust, business succession plan, will, living will and/or a power of attorney are only the first steps in the estate planning process. Making sure your family knows what to do upon your death or incapacitation is the final step.

Organizing a family meeting that fosters an open, honest discussion is very important. Explaining your plans will help prevent confusion, hurt feelings and misunderstandings upon your death or incapacitation. This final step in the estate planning process is vital because it allows you to express your feelings and reasons for how you have established your estate. It also gives your family an opportunity to ask any questions they may have about your final wishes.

Determining an Agenda for the Family Meeting

While a family meeting does not need to be conducted in a formal, corporate manner, having an agenda helps you stay on track during the meeting. It ensures that you cover all of the topics that are important to you. If a family meeting becomes emotional, it may be difficult for you to remember everything you wanted to discuss if you do not have a written agenda. You are discussing sensitive issues and some anxiety is to be expected. Remember to be sensitive of issues that relate to blended families. This can often lead to very emotional situations; therefore, having a written agenda can help you remain focused and stay on track. Discussion leads to acceptance and greater understanding.

You do not need to disclose all of the details of your estate at a family meeting. The value of assets, details of investments, the division of assets and other specific financial information should not be discussed at this meeting. This meeting is to provide a general explanation of your plans and wishes. It is also to provide information to those parties who will need to take specific steps upon your death or incapacitation such as your personal representative, trustee and power of attorney.

Other Matters to Consider When Planning a Family Meetingif-you-want-to-call-family-meeting-jst-turn-off-the-wifi-router-and-wait-the-room-in-which-it-is-located-302999

A crowded restaurant is not the best place to have a serious discussion about your final wishes. Select a location for your family meeting that is quiet, private and encourages discussion. A large conference room at your attorney’s office or a large family room in someone’s home are good locations for family meetings.
Schedule the family meeting at a time when all family members can attend. While it may be tempting to hold this meeting during a holiday when everyone is gathered together, many family members may not want to discuss such an emotional topic during the holidays.
Schedule a specific beginning and ending time for your family meeting. Two hours is usually a sufficient amount of time for you to explain your plans and for family members to ask questions. Having a specific beginning and ending time helps keep you on schedule with your agenda.
This meeting is for adults only. Everyone needs to focus on the topics being discussed; therefore, childcare arrangements should be made so that children do not attend the meeting.
Depending on the complexity of your estate, you may want your financial advisor and estate planning attorney at the meeting to answer questions. It also gives you an opportunity to introduce family members to the individuals they will likely be working with as your estate is probated after your death.

For more information contact our office to schedule a consultation with the attorneys at Krause Donovan Estate Law Partners, LLC. Their experience and knowledge can help you have the peace of mind of knowing that you have a plan. Contact Attorney Daniel J. Krause or Nelson W. Donovan today.

Reach us through our website or call our office at (608) 268-5751 to schedule your confidential, no obligation initial consultation

Minor Children as Beneficiariesmoney

No parent wants to think about leaving their minor children behind in the event of a tragedy; however, because terrible things do happen, it is better to be prepared. Estate planning ensures that your children will be taken care of in the event of your death. Estate planning also ensures that you are in control of the decisions regarding your child’s future. If you fail to plan, a stranger, who does not know anything about your children, will make the decision for you.

Naming a legal guardian is not sufficient to handle the financial aspect of an inheritance. Most parents believe that if they name a guardian for their children in their Will, this will be sufficient to provide for their children after their death. However, a guardian does not have access to your child’s inheritance.

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Caution: Writing Your Own Deed to Avoid Probate Can Lead to Unintended ConsequencesAssetProtection

One common way to avoid probate of real estate after the owner dies is to hold the title to the property in joint names with rights of survivorship with children or other beneficiaries. This is accomplished by adding the names of the children and certain legal terms to a new deed for the property and then recording it in the applicable public land records.
Many people believe that they do not need to pay an attorney to help them prepare and record the new deed. Instead, they think that a deed form can simply be downloaded from the internet or obtained from a book that can then be easily filled out and recorded. But deeds are in fact legal documents that must comply with state law in order to be valid. In addition, in most states, property will not pass to the other owners listed in a deed without probate unless certain specific legal terms are used in the deed.

How is a Defective Deed or an Invalid Deed Corrected?

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Is a Revocable Living Trust Right for You?     Trust

Revocable Living Trusts have become the basic building block of estate plans for people of all ages, personal backgrounds, and financial situations. But for some, a Revocable Living Trust may not be necessary to achieve their estate planning goals or may even be detrimental to achieving those goals.

What Are the Advantages of a Revocable Living Trust Over a Will?

Revocable Living Trusts have become popular because when compared with a Last Will and Testament, a Revocable Living Trust offers the following advantages:

  • A Revocable Living Trust protects your privacy by keeping your final wishes a private family matter, since only your beneficiaries and Trustees are entitled to read the trust agreement after your death. On the other hand, a Last Will and Testament that is filed with the probate court becomes a public court record which is available for the whole world to read.
  • A Revocable Living Trust provides instructions for your care and the management of your property if you become mentally incapacitated. Since a Last Will and Testament only goes into effect after you die, it cannot be used for incapacity planning.
  • If you fund all of your assets into a Revocable Living Trust prior to your death, then those assets will avoid probate. On the other hand, property that passes under the terms of a Last Will and Testament usually has to be probated. A probate could add thousands of dollars of costs at your death.

Why Shouldn’t You Use a Revocable Living Trust?

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Travel Smart: Update Your Estate Plan Before You TravelTravel1

Are you planning a big trip this year? If so, you may have already began jotting down your travel to-do list to make sure that you do not miss anything for your big trip. Planning your wardrobe, checking travel arrangements and making reservations for meals and entertainment are probably high on your list. However, you should also take note of several estate planning “to do” items that should also be checked off your to-do list before you leave on your trip. Reviewing your estate plan before you leave will give you the peace of mind you want on your trip knowing that should something happen, your loved ones will be protected and provided for in your absence.

1. Stop procrastinating. If you have been putting off until tomorrow what you can do today, the day has arrived. Make an appointment with an estate planning attorney to discuss the estate planning tools that best suit your needs. Make sure that you do this well in advance of your trip so that everything is in order before you leave.

2. Review and update your existing estate plan. If you are on top of your estate planning, you should know that any changes in your finances or life changes such as the birth of a child, the death of a family member, marriage, divorce or remarriage are a reason to review, update and revise your estate plan. Make an appointment today to review and possibly revise your estate plan with your attorney.

3. Review titles and beneficiary designations. This is something that we all let slip our minds at times. We create a trust, draft a Will or buy and insurance policy and name a trustee, personal representative or beneficiary and then forget about it. However, your trustee may have died since you drew up your trust or a child may have been born and you need to name a guardian or add the child as a beneficiary to your life insurance policy. Now is an excellent time to review these designations to ensure they are accurate and make any changes if necessary before you leave on your trip.

4. Provide for your minor children. If you have not considered who would raise and care for your children in the event you are gone, do it right now! Your children deserve to be cared for by someone who is not only responsible but someone that you trust completely. Do not allow the state to make this decision for you. Appoint a guardian and/or trustee for your minor children immediately.

5. What happens if you become incapacitated? It is not a pleasant thought; however, you should want to be in charge of your healthcare even if you are unable to make those decisions for yourself. If you do not have:

A Durable Power of Attorney for Heath Care giving another person legal authority to make health care decisions (including life and death decisions) for you if you are unable to make them for yourself; and, HIPPA Authorizations, written consents for doctors to discuss your medical situation with others, including family members. Do not allow the state to interfere with your healthcare wishes.

6. Review your insurance. You should review your life insurance periodically to ensure that the beneficiaries are correct and that the amount is sufficient to provide for your loved ones in the event of your death. If you do not have long-term care insurance, disability insurance or travel insurance, now is the time to discuss these policies with your insurance agent.

7. Organize your accounts and documents. Pull together each estate planning document, life insurance policy and other financial document that you have, organize them into one neat, easy-to-understand file and lock it in a safe. Before you turn the key, scan copies to your computer, make a backup file on another computer, print copies for your beneficiaries, trustees and other appointees and, of course, make sure your attorney has copies. Make sure that anyone who needs to know where to find these documents has a copy and know where to look for the originals.

8. Talk to your children about your plan. Obviously, you do not want to discuss your estate planning decisions with young children; however, as your children mature, it is a good idea to discuss your decisions with all of your children. It helps prevent discord and misunderstandings once you are gone if everyone is on the same page while you are still here to answer questions and explain why you left great-grandmother’s ring to Sarah rather than Jane.

Talk to estate planning attorneys at Krause Donovan Estate Law Partners, LLC. Their experience and knowledge can help you have the peace of mind of knowing not only that you have a plan, but that your plan still creates exactly the legacy that you want. Contact Attorney Daniel J. Krause or Nelson W. Donovan today.

Reach us through our website or call our office at (608) 268-5751 to schedule your confidential, no obligation initial consultation

Avoid Estate Planning Mistakes to Protect Your Loved Ones

No one likes to think about the end of his or her life; however, it is something that we all must face. In part, we do not want to think about the loved ones that we are leaving behind when it is our time say goodbye. It is because of your loved ones that you should think about estate planning. Estate planning protects your loved ones during a time when they are emotional and may not be thinking clearly. By taking steps now to ensure that your estate planning is up-to-date and includes all of the necessary estate planning tools, you can make it easier for your loved ones in the event of your premature death. Below are the most common estate planning mistakes and how you can avoid them.

Not having an estate plan or a final

Do you want the state deciding how to distribute your property upon your death? Intestate laws govern how a person’s assets will be distributed if the person dies without a properly executed Will. Rather than you making the decision as to how your property will be distributed, the state will divide your property among your legal heirs according to a pre-determined succession plan. Your family members will receive a percentage of your assets based on the laws of the state. Friends and unmarried partners will not receive anything from your estate. In most states, the individual’s spouse receives a large percentage of the estate with the remaining interest divided equally among the living children. If children are under the age of 18 years, the court will control their interest until they are of legal age (typically 18 years).

Three apparent estate planning mistakes result from not having a plan:

  • Your final wishes will not be carried out – the state will be in control.
  • Your children stand to inherit a substantial amount of money when they turn 18 years of age without any supervision as to how those funds are spent.
  • Your spouse may need to liquidate assets in order to pay living expenses; however, your spouse must petition the court and obtain court permission in order to liquidate any assets held jointly with the minor children. The minor child’s funds must be placed in trust and cannot be used by your spouse to provide for your family.

Avoid this estate planning mistake by having a final Will that details your final wishes including how your property is to be distributed upon your death.

Failing to appoint a guardian for minor you die before your child reaches the age of 18 years, he or she must have a legal guardian. In the event that only one parent dies, the other parent becomes the child’s legal guardian. However, if both parents die without naming a guardian in a will, the court will name a guardian. This person may or may not be the person you wish to raise your child in your absence. To avoid this estate planning mistake, you must have a Will that appoints a legal guardian in the event of your death.

Relying on joint ownership to convey property.

Many people believe that by placing a co-owner on their property they can avoid probate. While this may work for most assets, it can create several problems as well. For example, the property becomes subject to the debts of the co-owner. If the co-owner is sued for an unpaid debt, his or her interest in your property may be attached to pay the debt. The property may also be included in the co-owner’s divorce or bankruptcy. It also does not take into account other family members who you may wish to receive an interest in the property after your death (the co-owner could claim the entire property as his or her own). You can easily avoid this estate planning mistake by utilizing one of the many estate planning tools such as a trust or a Will.

Failing to plan for incapacity.

Your final Will does not address issues of mental or physical incapacity. It is unfortunate but many people become mentally and/or physically incapacitated prior to their death. Some live for many years in this condition. This leaves the family to try to “guess” what their loved one would want to do with regard to healthcare and financial decisions. In most cases, the family must retain an attorney to petition the court to appoint a conservator to handle your finances and a guardian to make all other decisions for your. You can avoid this problem by using one of more of the estate planning tools that address physical and mental incapacity.

A power of attorney is a way that you can give someone the power to make financial decisions on your behalf even if you are unable to do so yourself. Your power of attorney can do anything in your name that you can do legally for yourself. Powers of attorney do not become void in the case of incapacity of the grantor. A trust is another tool that you may use to appoint a person to manage your finances if you are unable to do so for yourself. A trustee is held to a higher standard than a power of attorney and can be held accountable for misuse of his or her power.

A power of attorney or trustee does not have the ability to make healthcare decisions. By appointing a healthcare agent, you give that person the authority to make healthcare decisions on your behalf if you are unable to do so. Furthermore, you can also direct whether you want to be kept alive by artificial means including withholding medicine and/or nutrition. End of life decisions are very difficult on the family members who are fighting to keep their loved ones with them as long as possible. You can make your wishes known and release your loved ones of the burden of making those decisions by using estate planning tools regarding healthcare and end-of-life decisions.

Not updating your estate plan.

This is one of the biggest estate planning mistakes that is easily avoided. Events in our lives are constantly causes changes. Examples include the birth of a child or grandchild, divorce, marriage and the loss of a loved one. Each of these events can change your estate plan. To ensure that your estate planning tools are meeting your current needs, review your estate plan regularly and contact your attorney as soon as something changes. Maintaining and updating your estate plan will ensure that your final wishes are carried out in the event of death or incapacitation.

To create a personalized estate plan or to make certain your existing plan is up-to-date, accurately and legally reflecting the current state of your estate planning objectives, talk to estate planning attorneys at Krause Donovan Estate Law Partners, LLC. Their experience and knowledge can help you have the peace of mind of knowing not only that you have a plan, but that your plan still creates exactly the legacy that you want. Contact Attorney Daniel J. Krause or Nelson W. Donovan today.

Reach us through our website or call our office at (608) 268-5751 to schedule your confidential, no obligation initial consultation

big-house.jpgA man’s death without an estate plan triggered a protracted legal squabble between his children and their stepmother over a parcel of property the father and stepmother purchased prior to their marriage. Because the man died without placing his intentions in writing, the Wisconsin courts had to decide the issue of ownership, and concluded in Droukas v. Estate of Felhofer that the property was a marital asset, and belonged 100% to the stepmother. A single document, known as a marital property agreement, potentially could have avoided this entire litigation.

In March 1999, Gregory Felhofer and Mary Lynch purchased an empty lot in Franklin, Wisconsin. The couple began building a home on the property that summer and, in mid-September, with construction underway, the couple married. The city did not issue a certificate of occupancy until January 2000.

Eleven years later, the man died intestate. The home was not included in the man’s estate. Felhofer’s children from a previous marriage contested the probate distribution, arguing that the home was improperly omitted, and that they were entitled to a one-half ownership interest in the property. The wife argued that the home was marital property and automatically became solely hers when her husband died. The children countered that the parcel could not be marital property because the purchase occurred before Gregory and Mary married.

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wi_supreme_court.jpgA recent Wisconsin Supreme Court case, McLeod v. Mudlaff, is among the most recent in court cases with “estates gone wrong” issues. While the Supreme Court’s decision focused upon the validity of the decedent’s marriage, the case arose initially as a probate dispute. The breakdown of the deceased woman’s estate offers some helpful instruction about the potential benefits of living trusts in estate plans.

Ms. Laubenheimer created a will in 1999 leaving most of her estate to her three stepchildren. In early October 2008, Laubenheimer suffered a series of debilitating strokes and was admitted to a nursing facility. On October 11, two doctors signed a “Statement of Incapacitation”, attesting to her condition. Nevertheless, Joseph McLeod, who had been living with the woman, checked her out of her nursing home twice, on Oct. 27 and Nov. 3, to obtain a marriage license and hold a marriage ceremony. The woman died three months later.

A probate dispute ensued when McLeod argued that Laubenheimer’s 1999 will was invalid and that, because he was her husband and the woman never adopted her stepchildren, he was the sole heir of the woman’s $450,000 estate. The stepchildren contended that the woman lacked the mental ability to provided legal consent after her incapacitating strokes, making her marriage to McLeod invalid.

The issue before the Supreme Court focused solely on whether a trial court can invalidate a marriage after one spouse has died; however, Laubenheimer’s case also offers a valuable lesson regarding estate planning. In cases where, as the deceased woman’s stepchildren asserted here, a party seeks to manipulate the system to improperly gain control of another’s assets, a living trust may offer a degree of protection.

How a revocable trust can (and can’t) help

Many revocable living trusts name the trust’s trustor, or creator, as the original trustee. That person has the authority to manage all assets owned by the trust until an event occurs that triggers a transition to the successor trustee, whom the trust creator named at the time of the trust’s creation. Most trusts provide several events that trigger a successor trustee’s assumption of control, including the original trustee’s death or incapacitation. Often, trust documents state that the medical statements of two doctors provide sufficient proof to establish incapacitation. In Laubenheimer’s case, if she had created and funded a living trust with her assets, the two doctors’ October 11 “Statement of Incapacitation” likely would have triggered a transition of trusteeship of her trust from herself to her successor trustee, a person she would have named prior to her loss of mental capacity.

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will microsoft images.JPGHaving someone select you as the personal representative of his or her estate can elicit both positive and negative reactions. You may be honored, but at the same time, you may feel intimidated by the responsibility that comes along with it. Before you agree to take on this role, you should understand exactly the wide variety of responsibilities involved.

One of the first duties a personal representative (which is also called the “executor” in some other states) is tasked with is to submit the deceased’s will to probate. According to Wisconsin law, once you learn that you are the personal representative, you must file the deceased’s original will the Register in Probate for the appropriate county within 30 days. This filing is required even if the deceased estate does not require an actual probate process.

Your role as personal representative also makes you responsible for protecting the estate’s assets. This often involves changing legal ownership of assets from the deceased to the estate, and continuing to pay the bills. This usually involves opening a separate bank account in the name of the estate from which the bills are paid.

The personal representative must also determine exactly what is contained in the estate. This means creating an inventory of assets, including the deceased’s real estate, bank accounts, investment accounts and personal property. For some of these assets, including real estate and some others, you may need to obtain an appraised value of the item. The Internal Revenue Service requires appraisals for individual items with a value of $3,000 or more or, if you are dealing with a group of similar items, the number is $10,000. This means that, if you think the value of an asset is above, or even close to, that dollar amount, you should get the appraisal.

Paying the estate’s debts is another key element. A personal representative must also locate, and then pay, all of the estate’s creditors. The court will set a deadline by which everyone to whom the deceased owed money must present their claims. This period for creditor claims is between three and four months. The personal representative must publish a newspaper advertisement notifying creditors to submit their claims before the deadline.

Of course, one of the most essential tasks is distributing the estate’s assets and disposing of estate property. This may require retaining professionals to locate some beneficiaries named in the will. It may also necessitate working with real estate agents to sell property, or holding an auction or “estate sale” to dispose some assets.


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