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Elder Law

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Our firm recognizes the unique needs that older adults have in navigating our legal system.

Allow our experience to help you, your parent, your spouse, or your sibling with regard to the following areas.

 

 

Wills, Trusts, and Wealth Preservation

A Will is a written document that accomplishes three tasks:
1) it directs the distribution of your property after your death;
2) it states who will care for and distribute that property; and
3) it names someone to care for your minor children.

If you die in Wisconsin without a Will, state law says that your entire estate will be distributed to your spouse unless you have children from a prior marriage. In that case, your spouse will receive half of your nonmarital property, while the rest of your property will be shared equally by all of your children, including children of your current marriage.

If you do not have a spouse or surviving children when you die, the law lists the order in which parents, brothers and sisters, nieces and nephews, grandparents, grandchildren, and other kin will inherit property. The state school fund receives your property only if you die with no heirs.

A will is important because it allows you to:
•    decide who gets your estate when you die;
•    decide who should act as guardian if you die with young children;
•    decide whether your beneficiaries will receive their gifts from you outright or in trust;
•    select a personal representative who will have control over your assets and responsibility to pay bills and distribute your estate.

Well-drawn provisions reduce estate and inheritance taxes. You also may eliminate the cost of a bond for your personal representative by including a simple clause stating that no bond is required. Clear provisions for minor children help avoid an often costly and clumsy court-supervised guardianship.

Challenging a Will

A properly executed will can be challenged in court for any of three reasons:
1) the individual executing the will was under duress or undue influence when the will was made;
2) the person was incompetent or unable to understand the results of the will when it was made; or
3) the will was not executed with the proper formalities.

Either may occur if the only assets to be transferred are jointly owned property, individually owned life insurance, or survivorship marital property, which is property that either spouse has the right to full ownership to upon the death of the other. Most jointly owned property and survivorship marital property are automatically transferred to the survivor; insurance policies pay proceeds to the beneficiaries you choose.

Choice of Will 

Before you decide you do not need a will, remember that you may want to name alternate heirs in case you and the joint owner (often a spouse) die at the same time. You also should consider naming a guardian for your minor children, and you may be able to leave your heirs a larger estate by using a will to save on taxes.

Placement of Will

Your will should be protected against theft and fire in a place where it will be found after your death. A safe deposit box is a common location. You may also deposit your will with the register in probate for your county, if local rules permit this practice.

Your personal representative should know the location of your will.

Changing a Will

There are two ways to change a will.
1)The first way simply is to execute a new will–the new will replaces all previous ones.
2)The second way is to write a supplement, called a codicil, which amends your existing will. The codicil must be made with the same formalities required for executing the original will.

Living Trusts

A Living (inter vivos) Trust can be used to control your property during your lifetime; its terms may allow the trust to continue to control the property after your death. You would need to sign documents giving your property to the trust. For tax purposes, during your lifetime that property is generally treated the same as if you still owned it.

A living trust can have some advantages and some disadvantages.
+ On the positive side, property held in the trust may not be subject to probate procedures.
–  On the other hand, buying, handling, and selling assets may be more cumbersome.
You may need to consult an attorney to understand the effect of a Living Trust on your property.

Powers of Attorney

A power of attorney authorizes another person to act for you; that person is called your agent. A durable power of attorney allows your agent to act for you even if you become incompetent.

You can create a durable power that will be effective when you sign it or when two physicians state, in writing, that you are not capable of handling your affairs. This second option is called a “springing” power of attorney.
Name only someone you trust absolutely.

Typically, the powers of attorney our firm provides are for financial, health-care, and parenting related decisions.

Depending on what you say in the power of attorney document, your agent may be able to sign legal documents in your place, buy and sell real estate for you, pay your bills, and take other actions on your behalf.

Health Care Decisions

Wisconsin law allows you to create a durable power of attorney for health care. Under this law, you give your agent the authority to make health care decisions for you when you are unable to make them yourself.

Probate

Whether planning for the future or dealing with the death of a loved one, our firm prides itself with providing sensitive and confidential advising to individuals and families in navigating and avoiding probate court.

Living wills, health care directives, and physicians directives

A property drafted legal document can provide specific and tailored direction regarding life-ending care.  Our firm provides thorough and complete legal advice and drafting services specifically tailored to your particular circumstances and needs.

Guardianship

Guardianship is the legal process used to designate an agent, called the “guardian”, when individuals can no longer make or communicate safe or sound decisions about their person and/or property, or have become susceptible to fraud or undue influence.

Guardianships are also used to protect children with incapacitating disabilities when they turn eighteen.  Putting powers of attorney in place requires legal capacity to do so.  For young adults who will never reach that level of capacity, a guardianship is the only way for the young adult to have a legal representative after the disabled person reaches adulthood.

Guardianships can be tailored to dovetail with the abilities of the person they protect.  For example, under the proper set of circumstances a person under guardianship, called a “ward”, can vote, hunt and fish, or marry.

Although they serve most of the same purposes as health care and financial powers of attorneys, guardianships are different in that they are subject to ongoing court oversight.  Agent decisions made under a power of attorney are not as readily reviewed.  Access to court oversight is useful for family members who may disagree about how best to handle the affairs of the family member under guardianship.

Corporate guardians are available to assist families in this situation.
Financial guardianships provide an initial inventory and annual accountings as part of court supervision.
Personal guardianships provide an annual, outside review of ward’s health and personal circumstances.

People who are able to execute powers of attorney should do so.  For those who do not and those who cannot, guardianships offer a useful alternate means of establishing a “legal proxy”.

Other areas

  • Beneficiary designations
  • Charitable giving
  • Codicils
  • Estate Tax avoidance
  • Executors
  • Gifts and gifting agreements
  • Grandparents’ Rights
  • Housing
  • Long Term Care
  • Marital property agreements
  • Medical Assistance
  • Medicare
  • Medicaid
  • Payable on Death accounts
  • Personal Representatives
  • Real estate titling
  • Social Security
  • SSI and other Governmental Income Security Programs
  • Trusts: Irrevocable
  • Trusts: Life Insurance
  • Trusts: Revocable
  • Trusts: Special Needs
  • Veterans’ Health Care Benefits

This information is intended to be viewed as general information. Your individual situation or needs require consultation with the advice of an attorney. We are here to help you today.