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Estate Planning and Probate

Estate planning frequently asked questions 

What is estate planning?

Estate planning allows you to arrange how you want your assets to be managed and distributed upon your death. Do I need a will? Certainly. Without a will the state will decide how your assets would be distributed in the event of your death. 

What is probate?

Probate is the legal process of transferring the property from a deceased person's estate to their heirs or beneficiaries. Additionally, probate is required in Wisconsin for any estate, without a trust, that exceeds $50,000. Probate is overseen by the local probate court.

What happens if I die without a will in Wisconsin?

Dying without a will means you die intestate. Your assets and belongings will get passed to your heirs according to Wisconsin's intestacy laws.

Do I need a lawyer to write my will?

While you do not need a lawyer to write a will, doing so without a lawyer is a considerable risk. A last will and testament that was not written by a lawyer or that was created using an online form are more likely to be challenged, deemed invalid, or leave significant assets unaccounted for, which can create confusion and unforeseen outcomes.

Dad's mind is "slipping." What should I do?

The law requires that people must have testamentary capacity to make a valid will. This often requires an understanding of the property being devised in the will, who is going to receive it, and the purpose and function of a will. People with Alzheimer's or dementia may struggle with testamentary capacity. Thus, I suggest that dad must immediately adopt a Durable Powers of Attorney for both Healthcare and Property nominating his loved one to make healthcare decisions and decisions regarding his assets when his doctor believes that he is not capable of making these decisions. 

Do I need a Will if I have no children?

If you die without a will, your estate will pass to others through Wisconsin's intestacy laws. If you have no children, then property will be disbursed to family members. If there are no heirs according to Wisconsin's intestacy laws, then the state may acquire the property. So, even if you do not have children, you still need a will if you do not want the state to make decisions for you about who gets what from your estate.

Keep in mind you do not have to create a will to benefit only family. A will allows you to pass your estate in a way that will serve what matters most to you: this could be preserving the financial wellbeing of your partner, parents, or siblings, but also setting money aside for the care of a pet, or assisting a charitable organization aligned with your values. 

Does my will automatically change if I divorce?

In most jurisdictions, divorce revokes will provisions. Exception to the majority rule: if there is evidence that the testator wanted the will to survive—such as a statement in the will that suggested that the testator still wanted the divorced spouse to take a share.

Note: separation does not impact the rights of a spouse.

Does my will automatically change if I have a child?

It depends on the language in the will. You should always revisit your will after having a child.

What is the difference between a will and a living will?

A will – also called a last will and testament – comes into effect when its creator dies and directs the executor on how to transfer the property in the estate. A living will, on the other hand, comes into effect when its creator is alive but incapacitated – it tells others what the creator's preferences and medical decisions are regarding their healthcare.

What is a trust?

A trust is a pool of assets that is set aside to be managed by a trustee, for the benefit of someone else: the beneficiary.

What is the purpose of a trust in Wauwatosa and Milwaukee?

A trust sets aside some assets for a trustee to manage for the sake of a beneficiary. The assets set aside in the trust do not go through probate, simplifying and expediting its transfer out of the estate. The trustee must follow the instructions set out by the trust.

Can I have both a will and a trust in Wauwatosa and Milwaukee?

Yes. Many trusts are testamentary trusts, and are created in the decedent's will. Lots of other trusts are made during the person's life to set aside some assets outside of their will.

Are trusts only for rich people in Wisconsin?

No, trusts can be created by anyone who wants to set aside money for someone but who does not want to give them the money in a lump sum. They are especially common when the beneficiary is underage or is unable to manage their own affairs.

What happens to jointly owned property when one spouse dies?

When spouses jointly own property and then one spouse passes away, the property is automatically passed to the surviving spouse. An example would be the marital home owned by both spouses.

What is a guardian?

A guardian is a person who is responsible for someone else's well-being. People often appoint a guardian for their underage children in their will or for their adult children with special needs. These legal guardians can make legal decisions, much like a parent.

How can I designate a guardian for my children?

Naming a legal guardian for your underage children is a common provision in a will. You also have the ability to appoint a conservator for adult children who may be unable to make certain decisions.

If you do not appoint a legal guardian via a will, the court will appoint one upon your death. For this reason, it is important, even if it seems like common sense, to make sure you designate a guardian in your will. 

How can we make sure our special needs child is cared for after we die? 

A common way to ensure a special-needs child continues to receive the care they need is to appoint a guardian for them and to create a trust fund in their name. Special-needs child trusts are specific for this purpose.

I like what I am reading. How can we get started? 

Prestige Law Office, LLC, understands that you have questions—and the firm focuses on creating tailor-made solutions, with superb personal service, for all clients. The firm handles estate planning for Milwaukee, Waukesha, Ozaukee, Racine, and Kenosha Counties. Give the firm a chance to help prepare your estate planning by scheduling a consultation and taking the first step in securing your future. Give the firm a chance to help with your estate planning by scheduling a consultation and taking the first step in securing your future.

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Prestige Law Office, LLC, is committed to answering your questions about business law, estate planning, and real estate law in Wisconsin. Schedule a consultation and the firm will gladly discuss your case with you at your convenience. Contact the firm to get started by scheduling a consultation and taking the first step in securing your future.

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