Articles Tagged with Estate Planning Lawyer Wisconsin

One of the more complicated aspects of estate planning is that while probate, or the process of transferring property upon a person’s death, is normally controlled by Wisconsin state law, most retirement plans are governed by federal law, specifically the Employee Retirement Security Act (ERISA). The ERISA “preempts” or overrides state law to the extent that there is a conflict between the two.

Can You Recover Pension Benefits from a Spouse You Killed?

A common estate planning consequence of the ERISA is that your will or trust does not necessarily control who is entitled to receive any benefits your retirement plan may owe you upon death. Typically, the administrator of your retirement plan will ask you sign a beneficiary designation form. That designation, and not your estate plan, dictates who gets the applicable benefits.

reviewing-document-300x300Most people only think about estate planning in terms of their personal assets, but what if you own or co-own a business? How does death affect the business? More importantly, what kind of business succession planning do you have in place to deal with your sudden or unexpected death?

Perhaps not surprisingly, most Wisconsin business owners have not done any succession planning. Some people assume the business simply dies with them. Depending on how you structured your business, however, that is not necessarily true. Even if the business is simply you, and you never created any separate legal entity, there will inevitably be certain matters that need to be wound down upon your death.

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trustee-300x160When you are creating a will or revocable trust as part of your estate plan, you need to think carefully before selecting someone to act as a personal representative or trustee. Many people just go with their nearest relative, such as a spouse or eldest child, but a fiduciary’s role is not ceremonial. An executor or trustee must be financially responsible and demonstrate the willingness to comply with legal deadlines and court orders. Failure to do so can lead to a substantial delay in administering your estate or trust.

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Probate administration in Wisconsin requires the personal representative (executor) of an estate to complete several steps before winding up the final affairs of the deceased. One critical step is filing an inventory with the probate court. The inventory, as the name suggests, is a listing of all property owned by the probate estate. Continue reading

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For many Wisconsin residents, administering a parent or relative’s estate may be their first extended interaction with the legal system. If you find yourself in the position of a first-time personal representative or executor, you may wonder if it is even necessary to hire an experienced probate and trust administration lawyer. After all, if your relative’s estate only has a few assets–maybe nothing more than a house and a checking account–you can surely handle everything on your own and spare the expense of a lawyer, right?

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When someone passes away with property titled out of state, transferring those assets to their rightful owner can become more complicated than what should be expected from a traditional probate process. If you have property titled out of state or are set to inherit property from another state, you may need to go through what is called ancillary probate and potentially require help from an out-of-state lawyer to complete the process.

If an out-of-state resident passes away and his or her last will and testament expresses intent to pass real estate in Wisconsin along to someone, it will be necessary for the administrator of the estate, as named in the will, to file probate in the Wisconsin county where the land is located. The executor will need to furnish the probate court with a copy of the decedent’s last will and testament as well as documents showing that the estate has been entered into the probate court of the testator’s state.

There are two ways that real estate owned by an out of state resident can be transferred without going through probate. The first is in the event that six years have elapsed since the deceased’s passing when a copy of the will and out state probate are used to secure a certificate of assignment to transfer the title without probate. The second, “no personal representative has been appointed in this (Wisconsin) state for the estate of any decedent who was not a resident of this state at the time of his or her death,” the county Circuit Court may appoint an executor to take control of the real estate.

Wisconsin is one of nine states with community property laws that can have a major impact on how couples conduct their estate planning and pass on property to their heirs. The law holds that any property acquired during the course of a marriage is equally owned between spouses and in the event of a divorce, must be split 50/50. Wisconsin is one of a handful of states that take the law further to apply to probate laws.

Married couples in Wisconsin are allowed to have property as survivorship marital property, also known as community property with right of survivorship, which passes on the deceased spouse’s half of the property upon death. What this means is that when one spouse passes away, the house, cars, furniture, and other real estate automatically become the sole property of the surviving spouse.

Wisconsin Statute 766.60(5)(a) reads: “On the death of a spouse, the ownership rights of that spouse in the property vest solely in the surviving spouse by nontestamentary disposition at death.” This law was promulgated in 1986 as part of Wisconsin’s adoption of the Uniform Marital Property Act (UMPA) which sought to create more consistent spousal property laws across the country.

Reviewing your estate plan and updating the beneficiaries on your retirement accounts is important anytime you have a major life change. A last will and testament does not generally cover who will receive the benefits from your retirement accounts when you pass away, which makes review and revision all the more important when necessary.

Some of the most important times to update your retirement accounts include after a divorce, remarriage, and having children. Other examples of when you will need to revise the beneficiaries on your retirement account could be if you have designated a charity to receive your benefits and it is no longer solvent. In either case, it can be especially difficult for heirs to challenge the designation in court and recover what should be theirs.

Should you fail to designate a beneficiary altogether or that individual passes away before you do, your beneficiary may be determined by state law or the provision that governs your account. Federal regulations govern profit-sharing plans, 401(k)s, and money purchase pension plans and will automatically go to your spouse if you are married. Unless your spouse signs and notarize a document stating otherwise, no one else may be designated as a beneficiary for these types of accounts.

Acting as the personal representative to an estate comes with a lot of responsibility, none the least of which is ensuring that all the proper paperwork is filled out and submitted to the proper authorities. While Wisconsin has essentially done away with the estate tax, executors still need to turn in tax returns on behalf of the deceased and ensure any outstanding taxes from the estate’s income are paid.

According to the State of Wisconsin Department of Revenue, more than one-tax form is required for deceased taxpayers. Those forms include:

  • Individual Income Tax Return

Creating a will and planning your estate is an incredibly important process that all adults need to think long and hard about, especially if they have children. Without a last will and testament, vital decisions about your estate will be left up to the courts or someone who might not be the best choice to oversee the process.

If you are married and believe you might not need a will because your spouse will naturally inherit the home and raise the children, you may not be taking into account some of the worst case scenarios. Should the unthinkable happen and both you and your spouse pass away with minor children, the decision over who will raise the children will be up to the courts if neither of you took the time to craft a will.

In that scenario, a court will need to choose a guardian to raise the children and oversee any assets that pass down. Letting a judge decide who will take care of your children can end up being an extremely emotional situation for some families, particularly if surviving family members disagree over who is best suited to take on the responsibility. If for no other reason than the sake of minor children, couples need to create a will spelling out who exactly will become their children’s guardian.