Articles Tagged with Estate Planning Lawyer Wisconsin

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.

Planning for your family farm’s future is a unique combination of estate and business planning, requiring attention to detail and understanding of family dynamics. Furthermore, because some farms can be capital intensive and have many assets, family farmers need to take into account how taxes and the probate process might have an impact on the state of the farm after it passes to the next generation.

While every family farm is unique, there are some common considerations that Wisconsin farmers usually take into account when creating their estate plans. Because these decisions can have a significant impact on the quality of life during retirement and the farm’s existence, families need to be proactive and open with each other about the farm’s future.

First and foremost, family farmers need a succession plan on whether or not a child will continue to run the family business. These days, as more and more rural young people move to the suburbs and the cities, most parents cannot count on the children to stay on the farm and run day-to-day operations.

The time it can take for an estate to pass through probate court in Wisconsin depends on many factors including the size of the estate, debts to be paid, and whether or not any interested parties contest the language of the deceased’s last will and testament. While there are any number of issues that may come up during probate, planning ahead and taking a few simple steps can help expedite the process as quickly as possible and ensure your heirs and beneficiaries receive their share of the estate.

Wisconsin probate laws require estates be closed within 18 months but some counties have even adopted ordinances aimed at reducing the amount of time to 12 months. If, for whatever reason, the executor cannot pass the estate through probate in time, he or she may ask the court for an extension for more time to perform the necessary duties to account for assets, liquidated holdings, and pay creditors if necessary.

For small estates with few assets and creditors, the process may take as little as six months if the executor in charge of the estate does his or her due diligence in cataloging assets and informing creditors about the deceased’s passing. Furthermore, the personal representative of the estate must file income tax returns for the deceased as well as income tax returns for any income earned by the estate after the decedent’s death.

Picking an executor to your estate is an important part of your estate planning process and should be done with a lot of thought and consideration about who is best to carry out your final wishes and ensure posthumous dispersal of your assets. Sometimes referred to as the “personal representative,” the executor is tasked with protecting your estate by settling debts, paying taxes, and ensuring assets are properly transferred to beneficiaries.

Executors have tremendous power over an estate and must make an assessment of all the deceased’s assets and debts and may even be able to sell of or liquidate property to help settle those debts. For those reasons and others, courts do set a standard all executors must meet and even leave open the possibility of the individual being excluded from serving as the personal representative altogether.

Wisconsin law only has two written requirements for persons to serve as executors of an estate, which are that the individual must be at least 18 years of age and be of sound mind. While some states exclude persons convicted of a felony from serving as the personal representative of an estate, Wisconsin places no such restrictions on the person assuming that role.

Receiving an inheritance in Wisconsin comes with many questions, including those about state and federal taxes. Fortunately for state residents, changes to federal tax laws in 2013 gave heirs a big break on how much tax may be levied against an inheritance.

The American Taxpayer Relief Act of 2012 (ATRA 2012) effectively ended inheritance and estate taxes for Wisconsin residents and drastically increased the threshold for federal taxes as well. Until the bill’s passage, Wisconsin estate taxes were directly tied to rates on federal inheritance taxes under what is known as a “pickup tax.”

Under the old law, Wisconsin “picked up” a portion of the credit for state death taxes allowed on the federal estate tax return (federal form 706 or 706NA). Because there is no longer a federal credit for state estate taxes on the federal estate tax return, there is no longer basis for the Wisconsin estate tax.

While Wisconsin courts try to move estates as quickly as possible through the probate process, some estates can take longer than others to gain the necessary approvals. If the probate court decides the estate needs to undergo formal probate, it could take much longer and become more costly.

Although not every estate can avoid undergoing formal probation, in most circumstances it should be unnecessary, especially if proper estate planning is done. By taking the time to sit down, think, and plan for the future, most folks can leave their estate is the best possible condition and avoid a long and distracting process.

Most estates in Wisconsin pass through the informal probate process with minimal supervision by a Probate Registrar in the county where the deceased lived. Also referred to as the Register in Probate, this office assists the judiciary and public by handling estates, guardianships, trusts and involuntary commitments.