Articles Posted in Probate

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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Some parents dream of the day when their children will take over a family business. For those whose children have the same passion for the same line of work or business, seeing this occur can be a “dream come true.” For others, their dream becomes complicated if for some reason their child or children are not remotely interested in the family business, or the children have different levels of interest. Consequently, having a plan in place is important so that the business is handed down appropriately.

If there are no children interested in continuing to run the family business, there are a couple of alternatives. One is simply to sell the business altogether. The other would be to name someone outside the family to be the successor. In either of these situations, the children would not be burdened with the day-to-day operations but they could still benefit from the sale or the profits from it.

Where it gets sticky is when there is one child who wants to take over the family business and the other who doesn’t. Unfortunately, giving shares of the business to the children equally might create future conflict if there are disagreements about the way the company is being run, among other things.

There are advanced planning tools available that can facilitate an equal and equitable transfer. This will help to avoid unpleasant situations that can arise from simply giving the business to the kids and letting them sort it out.

Here are some estate planning tips on how inheritance equalization can be accomplished from an experienced Wisconsin probate and estate planning lawyer. These tips are particularly important because in many family-owned businesses most of the assets are tied up in sweat equity. If there is one child that has been more involved in the business than others, you have to consider whether their illiquid equity will factor into the distribution of the assets of the estate to the other children.

One solution is to equalize inheritance between children with the use of life insurance. Essentially, the children who are going to take over the business will inherit stock in it and those who are not involved will receive an equal amount from a life insurance policy naming them as beneficiary, in addition to other assets that are not business related.

Another option is to simply sell the business, or name a successor from outside the family to run it. In either of these scenarios, the children can benefit from its sale or the profits from its continued operation.

If you do not have adequate assets outside the business and are unable to insure your life for enough to even things out, your next question should be: Which goal is primary? 1. to make certain that your children are treated fairly and equally, or 2. to make sure the business has the best chance of surviving.

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Many parents are unsure about what to tell their children about their inheritance for fear that their knowledge of even the most modest amount might cause them to be less productive adults.

Considering predictions that the baby boomer generation is going to inherit approximately $12 trillion from their parents, this is understandable. A 2010 study by MetLife determined that the median inheritance for two out of three baby boomers was approximately $64,000.

Parents who have considerable wealth are often reluctant to let their children know how much they stand to inherit out of fear that they may have no incentive to become employed and lead productive lives.

On the other hand, parents who do not have as much might be concerned that whatever they have accumulated will be used up for their own retirement and other needs. Under this scenario, children who had anticipated an inheritance would not receive anything.

In either situation, it is wise to at least discuss, in general terms, what you have or don’t have with your children. Tell them where your important documents are, and let them know who is to be your trustee or executor after you go.

This provides you with an opportunity to discuss family values and to tell them about your life. Studies have shown that children want to know about the struggles their parents have gone through and where they were raised. Share your life story with them and consider giving them something that has meant a lot to you for their safe keeping. It is also a good time to consider scheduling family vacations so that the entire family can get together or discuss plans for the holidays. By doing this, you will be instilling your belief in family values and traditions in your children.

Regardless of your financial situation, it is important that you have a durable power of attorney, health care documents and a trust or will established. The will is by far the most basic succession planning document and trusts are more flexible and advanced estate planning tools. The durable power of attorney allows you to appoint someone else to handle your financial affairs for you while you are alive and unavailable or incapacitated. Health care documents are living wills and a health care power of attorney.
These documents designate what type of care you want if you cannot make decisions for yourself or appoint someone to make them for you.

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How many times have you overheard a discussion or read an article talking about avoiding probate. Then later, wondering what it involved and why should you want to avoid it?

Probate is the legal process which divides and distributes a person’s assets after his or her death. The probate court will inventory the estate and distribute it to the heirs or beneficiaries of the deceased, after all debts are paid. A will must go through probate to be given effect. The term “probate” is derived from the Latin words “having been proved”. Through the legal process, the will is proved, or authenticated, the heirs are identified and the estate is distributed according to the will, after all taxes and debts are paid.

If there is no will, the assets of the deceased will be distributed according to the state’s laws of intestacy.

In Wisconsin, if an individual dies and has at least $50,000 in assets that do not automatically transfer to someone else, probate is necessary. This could include bank accounts, investments, vehicles, real property and personal property.

So why would you want to avoid the probate process? Because the probate process can be lengthy, from a few months to over a year or more, depending on how complicated the estate is. The average probate case in Wisconsin is open for 12 months. Having a long drawn out probate battle can be expensive and result in substantial legal fees.

Another primary reason to avoid the probate process is to avoid delay in the distribution of the assets of the estate, which are tied up during probate.

Also, if the will provides for trusts for children or grandchildren, that will require continued oversight by the probate court, an annual accounting and additional attorney fees.

In order to avoid the probate process, individuals in Wisconsin can establish a living or revocable trust, which will in effect own the assets of the estate. The living trust is one of the most popular vehicles for avoiding probate. It gives the individual who has a living trust the power to make alterations as desired, including complete revocation. Following this individual’s death, the named beneficiaries of the trust will then be distributed the assets of the estate, without having to go through probate.


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1285082_flag sxchu username linder6580.jpgThe question of who will inherit your money or property when you die is an important one. Too often, individuals who seek to plan their estate believe that merely writing a will is enough to ensure their end of life wishes are followed. Although creating your will is a significant first step in the estate planning process, it is important to realize that a number of other legal instruments may override the provisions of your will.

How your property or financial instruments are titled will take precedence over your will. For example, if you own your home jointly with a right of survivorship going to a spouse or other individual the property will transfer to your co-owner no matter what your will states. Additionally, named life insurance beneficiaries will always receive the insurance money regardless of the provisions contained in your will. A bank account, savings bonds, and any retirement accounts will also transfer to your named beneficiary after you die.

Only those assets you own individually that do not have a named beneficiary may pass by will. Still, it is important to tell your estate planning attorney about all of your assets and discuss with him or her exactly who you would like to receive those assets after your death. Your lawyer can help you decide if named beneficiaries are the best way to plan, and can help you change them if you wish.

Through a will, the parents of minor children have the ability to specify who will have guardianship of their children if they both die. Also, your personal representative (also known as an executor) is named in your will. A personal representative is a trusted individual who is tasked with carrying out your wishes throughout the sometimes lengthy probate process. Through probate, a court will oversee the payment of your debts and the transfer of your assets according to the provisions included in your will. Many people choose to avoid probate by transferring assets into a revocable living trust. A knowledgeable Wisconsin wills and trusts attorney can discuss the probate process with you in more detail.

Protecting the financial health of your family members and other loved ones after you die is important. In order to avoid mistakes and ensure your wishes are followed, you are advised to consult with an experienced estate planning lawyer on a regular basis.

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1316486_mock_credit_card_2 sxchu username highwing.jpgWhen a spouse dies, most people are understandably overcome by grief. Unfortunately, in Wisconsin, a surviving spouse may also be burdened by their deceased loved one’s credit card debt.

In most states, when a credit card debt is in only one spouse’s name, the debt will be paid out of the estate. Any credit card debt that exceeds the assets in the estate is never paid and a spouse cannot be forced to pay the debt.

Wisconsin, however, is one of ten marital property states. This means any debts incurred by either spouse are generally deemed to be jointly held. According to Wisconsin law, a surviving spouse will generally be held responsible for the individually acquired credit card debt of a deceased spouse.

Important exceptions do exist. For example, a surviving spouse may not be held responsible for a debt that was acquired by their deceased spouse before or during the marriage if used to pay an obligation that preceded the marriage. In some cases, a surviving spouse may only be required to pay those debts he or she directly benefited from such as utility or healthcare payments. A surviving spouse is always responsible for any outstanding debts related to a jointly held credit card.

After one member of a married couple passes away, the executor of his or her estate must provide notice of the death to all creditors, including credit card companies. A copy of the notice letter should be maintained in the executor’s records.

The Credit CARD Act of 2009 provides that no late or annual fees may be charged by a credit card company while a decedent’s estate is being settled. In addition, the estate is also provided with 30 days during which to pay the final outstanding balance on a credit card without incurring additional interest charges. If you are contacted by your deceased spouse’s creditors, you should refer them to the executor of your spouse’s estate. If you are the executor, you should not discuss the debt until you determine what assets remain, whether the debt is valid, and whether you are responsible for the debt. If your spouse died with outstanding credit card debt, you should contact an experienced wills, trusts, and estates lawyer to assist you in settling your spouse’s estate.

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