For Wisconsin Residents

A Will is an integral part to every estate plan, but it is important to remember that a Will only applies to probate assets and will not determine who receives property that passes by beneficiary designation, contract or operation of law. Estate plans designed to avoid probate by utilizing a revocable/living trust should include a Will in order to capture any property that inadvertently did not get transferred to the trust during lifetime.

A Durable Financial Power of Attorney names the person who may make financial decisions for you in the event you are incapacitated. This document avoids delays in asset management as well as the cost and potential embarrassment having a court proceeding to appoint a guardian of your estate. You may be expansive in the powers you grant to your agent with a properly drafted document.

A Healthcare Power of Attorney names the person who may make healthcare decisions for you in the event you are incapacitated. This document avoids the cost and potential embarrassment of the necessity of a court proceeding to appoint a guardian of your person who can make those decisions for you. A healthcare Power of Attorney document addresses life support and feeding tubes and when your agent may withhold them in the course of your medical care.

The Health Insurance Portability and Accountability Act of 1996 (AHIPAA@), 42 U.S.C. ‘1320d and 45 C.F.R. parts 160 and 164 (AThe Privacy Rule@) created rights with respect to the non-permissive release of your medical information. As such, under the law you must appoint a representative to access your medical records when you are unable to do so for yourself or when you desire to allow that person to be informed. In many cases, I like some other lawyers, take the conservative position that a person must be appointed a representative under HIPAA in order to implement the determination that you not competent to handle your own affairs such as under a Durable Financial Power of Attorney document.

In Wisconsin the form is called a “Declaration to Physicians.” A Living Will instructs your physician regarding the type and extent of life support measures to be taken in two limited circumstances which are in the event you are either in (a) a “terminal condition” or (b) a “permanent vegetative state” as determined by state law. This document will instruct a physician with respect to life support and feeding tubes when you are both incapacitated and either you have not appointed a health care agent or your health care agent is unavailable. This document should be consistent with your healthcare power of attorney form and may save family members from having to make difficult and often painful decisions during a time of stress.

A Marital Property Agreement classifies property owned by a married couple as either marital property or individual property. If you do not classify your assets by agreement, Wisconsin’s marital property law will classify them for you. A Marital Property Agreement should be a part of most estate plans for married couples (especially in second marriage situations where there are children from the first marriage and in situations where one spouse is anticipating a sizable inheritance) to avoid unintended dispositions resulting from the unanticipated classification of property. I discuss this issue with my married clients as a part of the estate plan process. In addition, a marital property agreement can be used to help avoid probate upon the first spouse’s death.

Trusts are the most flexible estate planning document available. A Trust may be created during life (called an intervivos trust) or by your Will (called a testamentary trust).

Trusts can be created for many different purposes, for example: to manage your property, make gifts of your property to family members, significant others or to charities, manage assets for minor or incompetent beneficiaries or until a beneficiary attains a certain age, provide for the needs of a second spouse during his/her lifetime with assets passing to the children of a first marriage upon the second spouse’s death, provide for the supplemental care of a disabled individual or elderly person while allowing him/her to qualify for public assistance or to a pet trust to care for your animals.

There are certain types of trusts that are irrevocable and other types are revocable (such as a “revocable living trust’). Other trusts are treated as a gift to the beneficiaries yet all of the income and expenses are reported back on the grantor’s personal income tax return (these are called “Grantor Trusts.”