Estate Planning

When a loved one passes on, it creates great hardship on the people they leave behind. A properly drawn estate plan can ease that hardship and mirror your heart, mind and spirit. At Clair Law, our attorneys and staff have over 50 years of experience guiding people through the process of drafting an estate plan that fits you and your family’s needs and desire to avoid future disputes. We understand the importance of these decisions and can assist you to determine the best estate planning tools for you, whether that is a Will, Living Trust, Healthcare Power of Attorney, Power of Attorney for Finances and Property, or Marital Property Agreement.

We can also help you to understand and address any concerns you may have in any of the following areas:

Beneficiaries	Long-Term Care Planning
Business Succession	Minor Children
Charitable Giving	Probate Avoidance
Executors/Personal Representatives	Retirement Account Beneficiaries
Farm Succession	Revision of Current Plan
Guardianships	Special Needs Trusts
Large Estates	Tax Planning
Lifetime Giving	Trustees

Frequently Asked Questions Regarding Estate Planning

What is a will?

A will is a written document which directs the distribution of your property after your death. You may designate who is responsible for distributing the property (a personal representative) and name someone to care for your minor children (a guardian). In addition, you may make specific gifts to named individuals or charities. You can also establish a trust within your will.

What happens if I die without a will?

If you die without a will, your property is distributed according to the laws of your state. Under the present Wisconsin Law, if there is no will, all of your property will go to your surviving spouse, if you have one. If you leave children of a prior marriage as well, your surviving spouse will get half, and all of your children will share the other half. If you have minor children and there is no will, the court will determine who cares for your children and who will manage and distribute your property for the benefit of your children.

Is joint ownership or life insurance a substitue for a will?

In some cases, survivorship marital property, joint property or life insurance may substitute for a will. Survivorship marital property and joint property are automatically transferred to the joint owner. A Will, however, gives you the opportunity to name alternate beneficiaries who would receive the property upon the passing of both you and the joint owner (often your spouse). With insurance policies, you can name a beneficiary who will receive the proceeds directly from the insurance company. Keep in mind, however, that a Will has several other important functions, such as naming a guardian for minor children. Usually joint tenancy or life insurance simply are not adequate substitutes for a well drawn Will.

When should I review my will?

We would suggest that you review your will every time there is a significant change in your family’s financial situation. At a minimum, you should review your will every five years. Some changes that could cause you to review your will are:
• Death, marriage, divorce or remarriage
• Birth or adoption of a child
• If you change your mind about distribution
• A significant change in your assets
• A significant change in tax laws or other laws affecting your assets

How do I revoke my will?

One way to revoke a Will is to tear it up in front of two witnesses, and tell them what you are doing. However, keep in mind that if you revoke your Will and die without one, your property will be distributed according to the state law and that may not be what you truly desire. We recommend revoking your Will by writing that in a new updated Will.

What is a living trust?

A Living Trust is an estate planning tool wherein a person or corporate entity (the Trustee) holds property for the benefit of another person or persons (the Beneficiaries). The Living Trust provides for the distribution of your property upon death just like a Will, however no probate is necessary to transfer those assets. It is an instrument that you create during your lifetime that is effective immediately upon creation. A Will, on the other hand, is only effective upon death. All assets, such as real estate, stocks, bonds, bank accounts and the like should be transferred into the Living Trust and it may be revoked or changed at any point during your lifetime.

To determine whether a Living Trust is suitable for your particular estate plan, we invite you to contact Clair Law at info@clairlaw.com or make an appointment.

What are the advantages of the living trust?

In addition to minimizing administrative expense, a major advantage to a Living Trust is that a successor Trustee can step into your shoes to manage your financial affairs should you become disabled during your lifetime. Very often this may eliminate the necessity of uncomfortable and expensive guardianship proceedings. A Living Trust also provides more privacy as it is not subject to probate and therefore your estate plan and assets never become public record like a Will does.

There are many other benefits of a Living Trust depending on your circumstances. For example, it can provide property management for minors, disabled persons or others for whom outright property ownership is inappropriate or impossible. It may also help to minimize federal estate taxes. In Wisconsin, married couples may use a Revocable Trust to hold assets classified as individual property in order to prevent mixing it with marital property.

We suggest that you avoid sales people who call or invite you to attend free seminars with the thought in mind of “selling” you a Living Trust. Remember, there is no single, simple Living Trust adaptable to all people. Your estate plan should be customized to your personal desires. An improperly drafted Living Trust can cost you or your loved ones a great deal of unnecessary taxes, expenses and delays.

What is a power of attorney for healthcare?

The Power of Attorney for Health Care allows you to appoint an agent to make medical treatment decisions on your behalf should you ever become unable to make your own healthcare decisions. It can also give your agent direction as to specifically how you do or do not want to be treated. Having a Power of Attorney in place can avoid the possibility of dispute, litigation, guilt and worry among family members concerning these decisions.

Even young, apparently healthy individuals should consider the preparation of a Power of Attorney for Health Care, because even they can be suddenly stricken with a terminal illness or severely injured in an accident and medical decisions will have to be made.

We know of cases where people in comas with incurable disease being kept alive, often at great cost in both money and suffering not only to the patient, but to the patient’s family. You have the right to make your own health-care decisions, and you can make them right now. You are competent to make decisions and you should have the right to refuse life/death support measures, if that is your desire. You and your immediate family, and no one else, should make such decisions.

A Power of Attorney for Health Care is an important estate planning tool which you, your spouse, your children, your parents and others should consider acquiring now to help insure what you want to happen at such a critical time will occur. Our attorneys can make difficult problems in the future easier to bear. If you do not currently have a Power of Attorney for Health Care, please contact Clair Law at info@clairlaw.com or make an appointment.

What is a living will?

A Living Will, also known as a “Declaration to Physicians,” is an advance directive you are giving to your health care providers which states your wishes in the event of a “terminal illness” or a “permanent vegetative state.” Because the Health Care Power of Attorney accomplishes this and more, we generally find little need for a Living Will.

What is durable power of attorney for finances?

A Durable Power of Attorney for Finances and Property is a writing that grants authority to an agent to act in your place to manage your financial affairs if you can no longer do this yourself because of incapacity. It is a straightforward and inexpensive tool which avoids the expense and delay of a court ordered guardianship.

You may name another person, or even an institution such as a bank, to serve as your attorney-in-fact. The Durable Power of Attorney grants someone the legal authority to act on your behalf if you were to become incapacitated due to a health crisis and can potentially serve as a form of “senility insurance.” However, like any insurance policy, it is critical to understand the many variations in coverage and the effect such a document may have.

Contact Clair Law Offices at info@clairlawoffices.com or make an appointment to talk to one of our attorneys who is knowledgeable about these documents and can discuss your options.

Can I revoke my living will or powers of attorney?

A Living Will, Power of Attorney for Health Care, and Durable Power of Attorney for Finances and Property, just like your Last Will and Testament can be revoked or changed by you at any point during your lifetime. Signing a new Power of Attorney will revoke anything contradictory in a formerly valid Power of Attorney or Living Will.

Probate and Estate Administration

If you have recently lost a loved one and have been named Personal Representative, Executor, or Trustee of their Estate, you are most likely facing complicated legal issues, tax problems and simply not know what to do in these trying times. State law requires family and survivors to settle an Estate within certain time limits and can impose significant financial penalties for failure to do so. The attorneys at Clair Lawcan make difficult problems easier to bear with their professional, experienced counsel. Our goal is to serve, assist and make the administration of an Estate or a Trust as smooth and as worry free as possible under the circumstances.

Frequently Asked Questions Regarding Probate

What is probate?

Probate is a court supervised process where a person’s assets are transferred after their death to the legal heirs or beneficiaries named in their will. The person’s debts are determined and paid, as well as any estate taxes and income taxes. This process protects the respective rights of debtors, creditors and beneficiaries of the estate.

Probate does not have to be a long, difficult experience. With the proper legal assistance, probate can be a smooth and easy task. In some cases, you may never even have to appear in court. Local rules also shorten the time of probate. In Walworth County, for example, an inventory is due within three months and the entire administration must be completed within one year.

There are also other ways to transfer property after death that can be more time efficient. In small estates, property can be transferred by affidavit and will require no time in court at all.

What is involved in probate?

Formal probate requires the appointment of a personal representative and usually the employment of an attorney for the personal representative. They proceed:

• to take possession of and preserve the real and personal property;
• to make proper demand and collect all the debts, claims and notes due the deceased;
• to complete any pending lawsuits in which the deceased had an interest;
• to determine and pay all state and federal estate taxes and file all tax returns;
• to pay the valid claims of creditors and where necessary to sell estate property to do so; and
• to distribute the remaining assets to the proper persons.

These proceedings require preparation and filing of many legal documents, giving or publication of notices, hearings in court, and appraisals of property, transfer of all assets, closing the probate proceedings and the final discharge of the personal representative by the court.

Who's responsible for the probate or trust administration?

If a person dies leaving a Will, the Will ordinarily names a “personal representative.” If there is no Will, the court will seek guidance from relatives and heirs to name a personal representative. In the probating of an estate, the personal representative is directly responsible for the proper settlement of the affairs of the deceased person. It is the personal representative who directly employs legal counsel to aid in settlement of the estate.

If a person dies leaving a Trust, the Trust names a “Trustee” who is responsible for making sure that the terms of the Trust are followed.

How long does probate take?

It is difficult to predict how long it will take to settle any estate because each one is different. The court requires that an administration of an estate be completed within 18 months unless the time is extended by the court for good cause. Usually our office is able to close an average estate more quickly, generally between 6 and 12 months after the opening of the estate. Upon being retained by a personal representative to represent an estate, our firm provides a detailed letter to that personal representative outlining the specific duties of the personal representative, any unique problems involved in the estate and gives an estimate of the length of time necessary to close that particular estate.

The personal representative has a six month benchmark from the opening of an estate to complete the inventory for the estate. Federal and Wisconsin estate taxes must be paid within nine months from the date of death of the decedent.

How much will it cost?

The fees of the personal representative, filing fees and Federal and Wisconsin estate taxes are specified by law. The attorneys fees are established by the attorney and the personal representative and paid for by the estate. All fees are subject to approval by the court. The personal representative is entitled to a fee of 2% of the inventoried estate plus any net gains earned by the estate. This fee may be waived by the personal representative. Additionally, personal representatives are entitled to be reimbursed for any direct out-of-pocket expenses.

In sizable estates there can be federal and state estate taxes as well as income tax liability during the period of probate. Tax matters demand a substantial amount of expertise and time. Experienced legal counsel can be invaluable regarding tax matters. The attorneys fees are determined by a number of factors including the size of the estate, the amount of the responsibility assumed by the attorney and the results achieved during the course of administration of the estate.

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