MARTINSON LAW OFFICES

While you’re living and healthy, you value being able to make your own decisions about your finances, property, health care, and raising your children. Should you die or become incapacitated, you hope others will handle these matters for you according to your wishes.

The only way to assure that will happen is through estate planning. This process involves weighing various personal and financial decisions and creating legal arrangements to carry out those decisions. This brochure looks at key estate-planning tools: wills, living trusts, powers of attorney, and living wills.

What is a will?

A will is a written document that allows you to designate:

• who will receive your estate (your property that does not pass by beneficiary designation or joint ownership arrangement; see more below) after you die;
• who will raise your children if you die while they’re still minors, and your spouse is unavailable to care for them;
• whether your beneficiaries receive their inheritance outright or in a trust; and
• who will serve as your personal representative – that is, the person who will pay your bills and taxes and distribute the rest of your estate to your beneficiaries. (For more on personal representatives, see the State Bar of Wisconsin’s pamphlet, “Probate.”)

When should I write a will?

If you have accumulated some assets, and you care who will receive those assets after you die, it’s time to write a will.

Anyone with minor children definitely should have a will. In it, you can name the person you want to raise your children, should something happen to you and your spouse. Discuss this carefully with the prospective guardian, to be sure he or she is up to the job. Also, name an alternate guardian in your will as a backup.

On the other hand, if you’re a young adult, have no children, and own few possessions, you probably don’t need a will yet. The state would distribute your possessions to your parents. But if you’d rather leave your car to your girlfriend, or your prized Spider Man comic book collection to a favorite nephew, then a simple will is a good idea.

What if I die without a will?

In this case, the court appoints a personal representative who distributes your entire estate to your surviving spouse or registered domestic partner – unless you have children from outside your current marriage. In that case, your spouse or registered domestic partner retains half the marital property and receives half your individual property, with the rest of your estate split equally among all your children, from this marriage and outside it. (See also the State Bar of Wisconsin’s pamphlet, “Marital Property.”)

If you have no spouse, registered domestic partner, or surviving children or descendants of children when you die, your estate goes to other surviving relatives. State law lists the order of inheritance as follows: parents, brothers and sisters, nieces and nephews, grandparents, and descendants of grandparents. The state school fund receives your assets if you leave no heirs closer than the descendants of your grandparents.

If you leave behind minor children and have named no guardian in a will, a court must choose a guardian. Ask yourself: Is that a decision you want someone to make for you?

Having a judge decide who will raise your children can be emotionally wrenching for other family members. Also, court-supervised guardian-ships entail extra costs. Avoid the upset and expense by naming a guardian in your will.

Finally, bear in mind that if you have no will, the court will appoint a personal representative to administer your estate. Having a will allows you to choose this person. Also, you can stipulate in your will that the personal representative need not post a surety bond, thus saving money for your estate.

What types of property pass to your beneficiaries outside of a will?

These include:

• Survivorship marital property – goes directly to a surviving spouse. An example would be a house that has both spouses’ names (and only their names) on the title.
• Property that is jointly owned – goes to the surviving owner(s).
• Life insurance proceeds and funds in IRAs and other retirement plans – go directly to beneficiaries you listed on the appropriate forms.
• Transfer on Death (TOD) and Payable on Death (POD) assets and accounts – go directly to the beneficiaries named on the account or deed.

If all your property falls into the above categories, and you have no minor children, you might think you have no need for a will. You may be right. On the other hand, a will may still be wise.

For example, you and your spouse, the other joint tenant, or your beneficiary could die at the same time or that person could die before you. A will would enable you to name alternate beneficiaries. Also, you could save on estate taxes, thus leaving more to your beneficiaries, by using a will to set up a trust.

What makes a will legal?

To be valid, your will must be in writing, and you must date and sign it. At least two witnesses also must sign the will. They can do this after they watch you sign it. If they weren’t present then, you can state to them that the signature is yours, and then the witnesses can sign. The witnesses should not be beneficiaries named in the will or your heirs as designated by law.

Can I write my own will?

Yes, if you comply with all the above-mentioned requirements to make your will valid. But if in creating your will, you encounter any questions or complexities you don’t understand, it’s a good idea to see your attorney. Remember, this document must spell out all the conditions for transferring your assets. And, if you have minor children, it names their guardian.

A will is an important document. You’ll want to be sure it correctly expresses your wishes and that it’s legally enforceable. A lawyer can give you advice about not only your will, but also other aspects of estate planning you might otherwise overlook. We’ll discuss some of those later.

How does someone challenge my will?

A person can attempt to prove in court that:

• you were under duress or undue influence when making your will;
• you were incompetent or unable to understand the results of your will when writing it; or
• your will does not meet the requirements that make it valid, as listed earlier.

How can I change my will?

You have two options. You can simply write a new will, which automatically replaces an older one. Or you can add a supplement, called a codicil, to your existing will. For a codicil to be valid, it must satisfy the same legal requirements as those mentioned for a will.

Where should I keep my will?

Place your will where it’s safe from theft, fire, or other damage. A safe-deposit box is one possibility. You also may deposit it with the register in probate for your county.

Be sure your personal representative knows where your will is. Some people also give a copy to their personal representative. You’d want to do this, for instance, if you include funeral preferences in your will. Usually the reading of a will doesn’t happen until after a funeral. So you’d want your personal representative to have a copy on hand, to be able to carry out your funeral wishes.

Is a will written in another state legal in Wisconsin?

To be valid in Wisconsin, the will must comply with the laws of one of the following: Wisconsin, or the place where you properly signed your will, or the place where you lived when you properly signed your will.

Be aware, however, that Wisconsin has a marital property law and a same-sex domestic partnership law. If your will is from a jurisdiction with no such laws, you should have an attorney review your will. That way you can assure it still achieves the results you intend.

What is a trust created by a will?

You can use your will to create a trust upon your death. The trust holds your property for another person’s benefit. For example, a trust may provide an income for your spouse. Or it can hold property for your minor children until they become adults.

You name a trustee to oversee the trust. The trustee can be either a trusted individual (a friend, relative, or professional advisor) or a financial institution (a bank, brokerage firm, or trust company). The trustee is responsible for protecting the assets, paying out income earned, and terminating the trust as your will instructs.

What is a living trust?

You can create a living trust to control your property while you are alive. The trustee then would control your property after you die. Under this arrangement, you sign documents to give your property to the trust. As long as you’re living, the property usually is treated the same for tax purposes as if you still owned it.

An advantage of a living trust is that property can pass to heirs after you die without going through probate. A drawback is that buying, handling, or selling assets held in a living trust may be more cumbersome while you’re alive. Ask your attorney how a living trust would affect your property.

For more information, see the State Bar of Wisconsin’s pamphlet, “Revocable Living Trusts.”

If I have a living trust, do I still need a will?

Yes. A will would be important for several reasons. You may have property that never got transferred to your trust while you were alive. You would need a will to transfer that property to your trust after your death. Or your estate might receive money after your death. For instance, if your death was the result of an accident, your estate may receive wrongful death benefits. Again, you would need a will to transfer this money to the trust.

You also need a will in order to name a personal representative and a guardian for your minor children. That’s not part of setting up a living trust. A personal representative can take certain actions on behalf of your estate that a trustee cannot, such as pursuing a wrongful death claim.

What is a durable power of attorney?

This authorizes another person, called an agent, to act for you in financial matters. The agent’s rights to act on your behalf depend on what you say in your durable power of attorney document. These rights might include the authority to sign legal documents, pay bills, buy and sell real estate, and take other actions on your behalf. Choose a person you trust absolutely.

A durable power of attorney can take effect in one of two ways. If you wish, it can take effect immediately. Or you can provide that before the durable power of attorney takes effect, two physicians must state, in writing, that you are incapable of handling your affairs. The latter is called a “springing” durable power of attorney.

A durable power of attorney ends at your death. Your agent retains no further authority to handle your finances. If you want your agent to settle your financial affairs after you die, you need to name that person as your personal representative in your will.

What is a durable power of attorney for health care?

This arrangement gives your agent the authority to make health-care decisions for you when you’re unable to make them yourself. This is a heavy responsibility for anyone to assume. Be sure you discuss your health-care preferences with your agent, so he or she knows what you’d want. This makes the agent’s job much less difficult during what may already be a stressful time.

To create a durable power of attorney for health care, you can use the standard state form. Or, an attorney can create an individualized document for you. Either way, a durable power of attorney must meet specific requirements for it to be valid.

Can I have the same agent for both finances and health care?

Yes, one person can serve as both. If you feel you need to name two different agents, be sure they can work together. This would avoid a situation, for instance, in which your agent for finances could interfere with health-care decisions by refusing to pay certain medical bills.

What is a living will?

A living will is a separate legal document, not a part of your will. And, it’s not the same as a durable power of attorney for health care. The latter allows your agent to make health-care decisions for you. A living will, on the other hand, allows you to state in writing your preferences about life-prolonging medical treatment.

In a living will, you can declare that you wish medical professionals to withhold or withdraw life-sustaining procedures or non-orally ingested food and water – if you are in an incurable condition, or you’re near death, or you’re in a persistent vegetative state.

Your living will takes effect only when you become incapacitated, cannot speak for yourself, and there’s no hope for your recovery.

Your durable power of attorney agent also can make these sorts of end-of-life health-care decisions for you, if you grant that power. If you have both a living will and durable power of attorney for health care, the latter rules if there is any conflict between the two.

The current law regarding living wills went into effect Nov. 25, 1991. If your living will was written before then, you should have your attorney review it to be sure it still expresses your wishes.

Revocable Living Trusts

If you were to die or become disabled, you'd want your dependents to be financially secure. And you'd want someone to manage or distribute your assets just as you would yourself, if you could. The only way to assure these outcomes is to do estate planning.

A revocable living trust is one of several estate-planning tools. You can read about others in the State Bar of Wisconsin's pamphlet, Answering Your Legal Questions About Wills/Estate Planning.

Should a revocable living trust be part of your estate plan? No simple guidelines exist to answer that question. People with various levels of wealth and in different circumstances may, or may not, find a revocable living trust useful.

Your legal or financial adviser can help you decide whether this option is right for you. This pamphlet answers several questions to provide you basic information.

What is a revocable living trust?

A trust is a written agreement that names someone to be responsible for managing property for the benefit of others. A revocable living trust (also called a "living trust" or "revocable trust") is one type of trust.

It's a "living" trust because you create it while you're alive. It's "revocable" because, as long as you're mentally competent, you can change or end the trust at any time, for any reason. You need no one's permission to do so. In Wisconsin, a trust is revocable only if it states so in the trust agreement. Usually a living trust becomes irrevocable (not open to changes) when you die.

A trust involves three parties:

• The settlor or grantor is you, the person who creates the trust.
• The trustee is the person who agrees to accept your property and manage it as the trust agreement directs. You can name more than one trustee, thus creating co-trustees who must act together.
• The beneficiaries are those who will receive the income from the property in the trust and, with your direction, the property itself.

Who can be the trustee?

Any competent adult may be a trustee. Usually, you name yourself, or you and your spouse, as the trustee because you want full control of the property while you're alive. Many people, however, select a friend, relative, or qualified corporation (one to which the state has given trust powers) to serve as trustee.

If you choose one individual as a trustee, you also should name a successor trustee (a second person or a corporate trustee). This party can act if the first trustee dies or is unable or unwilling to continue as trustee.

Anyone you select as trustee should have the proper training and qualifications to carry out the trustee duties. These include managing the property, paying out income from the trust to beneficiaries, and distributing property to beneficiaries after you die.

Who can be a beneficiary?

When you set up a revocable living trust, you usually name yourself as the first beneficiary. If you're married, you might decide to name both you and your spouse as first beneficiaries. The trust also must specify who will receive your property after you die. This makes it clear to the trustee how you want your property distributed.

How and when do I fund a revocable living trust?

You need not put anything into the trust when you set it up. Some people put only a small dollar amount (say $10) into a trust initially. This is known as an "unfunded" trust. It's intended for future use, such as during old age or in case of disability. Until then the trust remains essentially empty, but it is in place if you wish to add more to it. In the meantime, you enjoy the benefits of not having your property tied up in a trust. You might use an unfunded trust as an alternative to a future guardianship or conservatorship.

When you decide to add substantial property to your trust, it becomes funded. From then on, the trustee has duties to perform. Some people put all or most of their property into the trust in the beginning. Others put in some property at first and add more from time to time – for instance, when a certificate of deposit matures. Still others set up a trust so that much of their property gets transferred only after they die. To accomplish this, you'd use a simple will called a pour-over will. It funds the trust with any property you didn’t put into the trust during your lifetime.

How does a revocable living trust differ from a will and a living will?

Both a will and a living trust enable you to provide for your beneficiaries and direct how your property will be distributed after you die. With a living trust, you turn over some or all of your property to the trustee to manage while you're alive. With a will, you keep your property and manage it yourself while you're alive. A living trust also lets you do something a will can't do: Spell out how you want your property managed if you become disabled during your lifetime. Finally, a living will is a completely different type of document. In it you state your preferences about life-prolonging medical treatment and procedures.

What can a revocable living trust do?

It can:

• provide financial management of your property – You may act as trustee at first and later decide you no longer wish to do so. A trustee or successor trustee you've selected can take over the day-to-day property management. Expect to pay this person a reasonable fee.
• provide property management if you can't manage your affairs – If you become too ill or disabled to manage your property, your trustee or successor trustee will do this for you. With no trust in place, you may need a guardianship or conservatorship. You avoid the trouble and expense of setting up such arrangements if you have a living trust. If your trust is unfunded when you become disabled, you'll need to have given someone a durable power of attorney to enable that person to transfer your property into the trust (more on this later).
• provide for minor children when you die – In a living trust, you can make all the provisions for your spouse and children that you can in a will, including naming guardians for minor children.
• avoid probate – Property in your revocable living trust doesn't go through probate after your death. (See the State Bar of Wisconsin's pamphlet, Answering Your Legal Questions About Probate.) If, however, you die leaving property that never got transferred to the trust, probate usually will be required. Also, if you own land in another state, probate may be necessary in that state to transfer the land to your heirs. But putting that land in the trust may avoid probate in the other state, too. One advantage of avoiding probate is confidentiality. A living trust doesn't become part of the public record, unless a trustee or beneficiary insists on court approval of accounts. Probate records, on the other hand, are open to the public.
• shorten or eliminate delays in distributing your property to beneficiaries – This is another advantage of avoiding probate. The probate process may delay property distribution. With a trust, your trustee may be able to distribute property to your beneficiaries sooner. This is because, unlike probate, a living trust operates without court supervision – unless someone requests such supervision. Still, even with a living trust, outstanding taxes or claims that you owe money could delay property distribution.

What can’t a revocable living trust do?

A revocable living trust:

• can't save you income taxes – Because you can end a revocable living trust at any time, the state and federal governments view any income the trust earns as your income. Usually the trustee pays you all the income, as well as any amount of principal necessary to provide for your needs. If you become disabled, the trustee pays necessary amounts of income and principal for your benefit.
• won't reduce estate and other death taxes more than any other estate-planning tool – Property in your trust at the time of your death will be part of your taxable estate. Your estate may need to pay some taxes if, at the time of your death, you held property ownership interest with a net value above a certain amount. For the federal estate tax, that amount was $2 million for 2008, rising to $3.5 million in 2009, and to $5 million in 2011 and 2012. You may be able to reduce or avoid these taxes through some type of trust or a will. But you don't need a revocable living trust to get the best tax savings.
• won't eliminate costs associated with probate – You have to pay the trustee or someone to prepare documents, file tax returns, transfer property, and so on. These costs are similar to what a personal representative would have in managing the probate of your estate.
• doesn't protect against creditors' claims after you die – One advantage of probate is that creditors' claim periods expire a short time after your death. To be able to collect, a creditor must make a claim within four months after probate begins. This guarantees beneficiaries they’ll get the property, with no worry that later they’ll have to pay creditors for old bills. If you use a trust and your estate thus avoids probate, your beneficiaries will have no such protection.
• doesn't eliminate the need for a will – You may have property that never got transferred to your trust. You'd need a will to transfer that property to your trust after your death (the pour-over will mentioned earlier). Also, your estate might receive money after your death, such as a settlement from a wrongful death action. You'd need a will to transfer this money to your trust.
• doesn't eliminate the possible need for a durable power of attorney – You may become unable to manage your property before you've transferred all of it into your trust. If so, the person you appointed with a durable power of attorney – your agent – could do this for you. The trustee, however, can make decisions only about property already in the trust. Your agent also can take care of taxes, health benefits, living expenses, and other matters. If you haven't used a durable power of attorney to name an agent, the court appoints a guardian to make these decisions. (To learn more, see the State Bar of Wisconsin's pamphlet, Answering Your Legal Questions About Wills/Estate Planning.)
• won't help you avoid nursing home costs – The property in a living trust still belongs to you because you can take it back anytime. Thus, it will be included in calculations of your eligibility for Medicaid, which helps pay for nursing home care and provides other benefits.

Can there be court supervision of a revocable living trust?

Yes. Usually people prefer the informality of operating the trust without court supervision. But a trustee or beneficiary can ask a court to get involved. The court could review the trustee's decisions or supervise the trustee in accounting matters, property management, or general fairness issues.

Should I have an attorney prepare my trust?

Both an experienced attorney and a financial adviser can offer personalized advice. An attorney also can make sure the legal documents are prepared properly and fit your situation. Do-it-yourself kits and formbooks are available, but these tend to take a one-size-fits-all approach, rather than meeting your unique needs.

The do-it-yourself materials are cheaper than hiring an attorney. But if the trust isn't tailored to your needs or if the documents are poorly prepared, major problems and big costs may arise later. Often you'll come out ahead by paying more to have it done right in the first place.

What about "special offers" I see advertised?

Proceed with caution. Scam artists try to take advantage of older people's fears about what will happen to their estates. Some unscrupulous businesses sell revocable living trusts, even if unneeded, to gain access to your private financial information. Then they try to sell you other financial products.

Beware of anyone who calls to offer an in-home appointment to explain why a living trust is right for you. Immediately walk away from anyone who tries to pressure you into buying a trust. Take your time to be certain you're getting what you want and need.

If you have questions or complaints about a trust you purchased or were asked to purchase, contact the State Bar Consumer Protection Committee.

Many people assume probate is a timeconsuming, expensive process. While it does entail costs and take time, probate may be less cumbersome than you fear. This brochure presents basic information about what probate does and how it works – and when it is unnecessary.

What is probate?
Probate is a court-supervised procedure for transferring ownership of someone’s assets after he or she dies. This process validates the person’s will and distributes property as the will directs. If the decedent left no will or other legal arrangement for transferring assets upon death, the estate still goes through probate.

The goal of probate is to protect the rights of heirs or other beneficiaries and others who have an interest in an estate. Probate determines what the estate owes in taxes and to creditors.

Who oversees the probate process?
The will names a personal representative who is responsible for overseeing the probate of an estate. A personal representative (called an executor in many states) may be a family member, friend, business associate, financial institution, or trust company. If the will designates no personal representative, the court appoints one.

The personal representative’s main duties are to:

• Identify and collect the decedent’s assets.
• Manage those assets during the probate process.
• Determine the surviving spouse’s rights under the state marital property law.
• Pay debts, claims, taxes, and probate administrative expenses.
• Make any distributions to the surviving spouse or dependent children required under state law.
• Distribute the remaining assets to those named in the will (or if there is no will, to the heirs at law).

What’s the difference between formal and informal administration?
A probate judge presides in formal administration, while the county’s register in probate supervises informal administration. Generally, you must use formal administration if the will has contested issues. Only a probate judge can rule on such disputes. If contested issues arise during informal proceedings, the matter would have to be switched to formal administration.

Informal administration costs less than formal, and, in many cases, you can handle all or most of the process through the mail. Milwaukee County, however, does require the personal representative to appear in person at the initial hearing.

Should I hire an attorney to handle probate?
The personal representative may wish to turn to a lawyer for professional legal advice related to the probate process. The personal representative is free to hire any attorney of choice; this need not be the lawyer who drafted the will.

For formal probate proceedings, a lawyer must represent the estate’s personal representative. And, though not required, it’s advisable for the attorney to attend informal administration hearings, if there are any. The register of probate’s staff can answer basic questions about procedures and preparing forms. But, unlike an attorney, they can’t evaluate your case and provide legal advice.

Which assets can bypass probate?
Probate is unnecessary if the property solely owned by the decedent totals less than $50,000 in value. Then all that’s required to transfer property is completing a “transfer by affidavit” form.

Also exempt from probate is property titled in joint ownership, which automatically passes to the surviving owner. In addition, life insurance payments and funds in an IRA, pension, 401(k), or other retirement plan bypass probate – if the decedent has named beneficiaries other than the estate. Those beneficiaries would receive the funds directly. But if the decedent named no beneficiaries, or named the estate as the beneficiary, these assets would go through probate.

Other assets may be exempt from probate, as well, if the decedent has done the necessary estate planning before death. More on this later.

How much does probate cost?
The major probate expenses include court costs, costs of putting up a probate bond if bond is not waived by the will, and fees paid to the personal representative and the attorney. The funds to pay these expenses come out of the estate.

The value of the estate’s assets will determine the court filing fees. Attorney fees vary depending on the complexity of the estate. Also, fees vary from one attorney to another, depending on experience and other factors. Billing methods also differ. Some lawyers charge by the hour; others charge a fixed fee. But by law, the attorney cannot base charges for probate services on a percentage of the estate’s value.

Once an attorney has basic information about the estate, he or she should be able to give you a rough estimate of total fees. Be sure you understand the fee arrangement before retaining the attorney.

The personal representative has a right to reimbursement for expenses incurred in managing and settling the estate, and for time spent carrying out those duties. Payment for the latter may equal 2 percent of the inventory value of the estate assets (less any mortgages or liens). Or it may be some other amount the decedent specified, or the beneficiaries agreed upon, or the court approved. If the personal representative is derelict in carrying out duties, the court may reduce or deny compensation. The court also must approve expenses and attorney fees in formal probate proceedings.

What taxes does probate involve?
The estate must pay state and federal income taxes on income the estate earns from date of death until completion of probate. In addition, there may be state and federal estate taxes. The value of the estate assets determines the amount of estate taxes.

No estate taxes are due on property distributed to a surviving spouse who is a U.S. citizen. In addition, in 2008 the first $2 million of assets are exempt from federal estate tax. This exemption is scheduled to increase under current law to $3.5 million for persons dying in 2009. The federal estate tax is repealed for one year in 2010, but returns in 2011 with a $1 million exemption.The Wisconsin estate tax expired Dec. 31, 2007.

How long does probate take?
Probate can take two years, even longer, for a large or contested estate. But the process may last up to six months even for a small, uncomplicated estate. Why does it take so long?

One reason is the time allowed for creditors to file claims against the estate. Usually it takes a few weeks to notify creditors after death. Once that’s occurred, creditors have three months to file claims against the estate. Also, the personal representative must file any outstanding income tax returns for the decedent as well as income tax returns for any income earned by the estate after the decedent’s death. If the estate is large enough, the personal representative may also need to file estate tax returns (due nine months after the date of death). The personal representative must then wait to receive tax closing letters from the Department of Revenue and Internal Revenue Service in order to close the probate.

Thus, the time needed for probate depends on such factors as estate size, type of assets owned, form of ownership, tax issues, complexity of creditors’ claims, marital property issues, and whether a business is involved. State law requires that an estate be closed within 18 months. However, several counties have adopted a benchmark for completing probate within 12 months. For either period, a court may grant a Petition for Extension. If the process goes beyond the allowed time, the court can replace the personal representative or the attorney for the estate, or both.

Even while the estate is still in probate, however, beneficiaries may be able to receive part of their inheritance. Once the creditors’ claim period is past, the personal representative should make sure the estate has enough funds set aside to cover all expenses and taxes. Then out of remaining funds, the personal representative could make a partial distribution to beneficiaries before probate is complete.

Can I avoid probate?
As noted earlier, some estates and types of assets are not subject to probate. Certain types of estate planning also can make probate unnecessary. For example, you can put your assets into joint ownership or into a revocable living trust.

Still, even with this kind of advance planning, probate may be necessary for some assets. This could occur, for instance, if an owner overlooked certain assets when transferring property to a revocable living trust. Or additional assets, such as a personal injury settlement, could be payable to the estate after the owner’s death and thus not be included in the trust.

And, creating a living trust doesn’t eliminate the need to pay taxes. The trust will owe federal and state income taxes on income the trust earns, and also federal and state estate taxes if the estate is large enough.

Is it smart to plan so that your heirs or other beneficiaries can avoid probate? The answer depends on many factors. Your attorney can help you sort out your options.

A legal guardian is a person who has the legal authority (and the corresponding duty) to care for the personal and property interests of another person, called a ward. Usually, a person has the status of guardian because the ward is incapable of caring for his or her own interests due to infancy, incapacity, or disability. Most countries and states have laws that provide that the parents of a minor child are the legal guardians of that child, and that the parents can designate who shall become the child’s legal guardian in the event of their death.

Courts generally have the power to appoint a guardian for an individual in need of special protection. A guardian with responsibility for both the personal well-being and the financial interests of the ward is a general guardian. A guardian of the estate is given the legal right to determine the disposition of the ward’s property without being given any authority over the ward’s person. A guardian of the person is appointed to represent the personal well-being of the ward. If the ward owns substantial property, the guardian may be required to obtain a surety bond to protect the ward in the event that dishonesty or incompetency on his or her part causes financial loss to the ward.

If you have a Durable Power of Attorney for finances, or a Durable Power of Attorney for Health Care, you are able to appoint someone you trust to manage your financial affairs and to make your health care decisions. By appointing a competent and reliable person as your agent, it may prevent the court from having to appoint a guardian for you. The Financial Power of Attorney document can give the agent power starting the moment you sign the document, or it can spring into effect only after a doctor states that you are no longer able to handle your financial affairs. A financial power of attorney needs to be a “durable” power of attorney so that it will continue even after you become incompetent. It is very important that you give serious thought to who you are going to name as your financial agent because he or she will have complete control over your assets. On many occasions, an agent has acted improperly and taken the money of the person who entrusted them with the duty of handling their financial affairs as they have the power to act without court consent or review unless someone brings them before the court.

The health care power of attorney document is a very important document because if two doctors state that you are no longer able to make healthcare decisions for yourself, it gives your named agent the power to make all health care decisions for you, including the power to place you in a nursing home or community based residential facility, if you grant him or her the power to do so. It also gives your agent the power to discontinue tube feeding if you allow them to do so. It is recommended that you add some language to the health care power of attorney document regarding your end of life wishes. If you do not have a health care power of attorney, or if you do not grant your agent power to place you in a nursing home, then it would be necessary to obtain a guardianship for you, if it was determined that you were unable to make your own health care decisions.

If you have a question regarding an elder law issue and/or need assistance with a guardianship, for a disabled child who is turning 18, or for an incompetent adult, please give Martinson Law Offices a call.

I’ve been injured, now what?

If someone else is more at fault for your injury than you are, you may make a claim against that person or business and their insurance company, if any. The type of accident and the cause of the accident may affect whether you are entitled to compensation, as in the following examples:

Motor vehicle accidents: Fault or “negligence” is determined by traffic regulations and which driver's carelessness contributed most to the accident and injuries, including your own conduct such as failure to use seatbelts.

A premarital agreement, or prenuptial agreement, is a contract entered into by two people prior to marriage. The content of a prenuptial agreement can vary widely, but commonly includes provisions for the division of property should the couple divorce and any rights to spousal support during or after the dissolution of the marriage.

There are two types of prenups: a marriage contract for people who are married or about to be married, and cohabitation agreements for unmarried couples. Laws around the world vary in their recognition of such agreements.

Historically judges in the United States frowned upon prenuptial agreements as corrupting what marriage was supposed to stand for, and often they would not recognize them. Nowadays prenuptial agreements are valid in all 50 states and the District of Columbia.

A premarital agreement can also address the rights of the parties at the death of one of the spouses. It may state what assets are going to be passed to the surviving spouse and what assets can be passed to other third party beneficiaries. A premarital agreement should be fair when it is entered into and each party should provide a complete financial disclosure statement to the other party prior to entering into a premarital agreement. Because a premarital agreement addresses the rights of the parties in a potential future divorce, each party should be represented by his or her own attorney. The parties should work on a premarital agreement many months before their wedding date.

If you are considering a premarital agreement, please give Martinson Law Offices a call and we will be happy to assist you in the drafting or review of a premarital agreement in order to protect your rights.

Real estate encompasses land along with anything permanently affixed to the land, such as buildings. Real estate is often considered synonymous with real property (also sometimes called realty), in contrast with personal property (also sometimes called chattel or personalty).

In most societies, a significant fraction of the total wealth is in the form of land and buildings. In most advanced economies, the main source of capital used by individuals and small companies to purchase and improve land and buildings are mortgages – bank loans for which the real property itself constitutes collateral. Banks are willing to make such loans at favorable rates in large part because if the borrower does not make payments the lender can foreclose, that is, file a court action that lets them take the property and sell it to get their money back.

Real estate law includes the sale and purchase of land. Attorneys draft and review Offers to Purchase along with the documents needed to close a sale. Whether you are working with a real estate agent or not, an attorney should be consulted as part of your sale or purchase transaction. Real estate law also includes the rules which govern landlords and tenants. For example, a landlord in Wisconsin must provide the tenant with a written accounting of their security deposit within 21 days of the tenant vacating the premises or the landlord may be subject to double the amount of the security deposit, costs and reasonable attorney fees.

If you need assistance with a real estate transaction, or have questions, please call Martinson Law Offices.

Commercial law or business law is the body of law which governs business and commerce and is often considered to be a branch of civil law and deals both with issues of private law and public law. Commercial law regulates corporate contracts, hiring practices, and the manufacture and sale of consumer goods. Many countries have adopted civil codes which contain comprehensive statements of their commercial law. In the United States, commercial law is the province of both the Congress under its power to regulate interstate commerce, and the states under their police power. Efforts have been made to create a unified body of commercial law in the US: the most successful of these attempts has resulted in the general adoption of the Uniform Commercial Code.

Business law also includes the rules to follow when forming a business. You may choose to operate your business as a sole proprietorship, a corporation, a limited liability company (LLC), partnership or a limited liability partnership (LLP).

If you are looking to form a business, please contact Martinson Law Offices, as they will assist you in this process.

If you die without a valid Will, state law will control the distribution of your assets. This may not be what you want. The court will appoint a person, usually your spouse or next of kin, to administer your estate. Normally, in Wisconsin, this person is called a personal representative, and in other states this person may be called an administrator, or executor. Basically, the personal representative collects all of the assets of your estate, files an inventory of your assets with the court, notifies creditors, and pays proper claims against the estate. The personal representative also pays taxes and files tax returns, distributes the assets to the beneficiaries, and then makes a final report to the court.

It is important to note that non-probate property will not be controlled by your Will. Non-probate property will be distributed automatically to the person named as co-owner, or to a beneficiary named in a life insurance policy or a retirement plan, or an annuity, for example. Therefore, it is important to review the various assets that you own and how they are titled to make sure they are being distributed according to your wishes.

A Will allows you to control what happens to your property and enables you to designate a guardian for your minor children. If a minor child was an heir to your estate, and you did not have a Will, then the court would have to appoint a guardian for that minor child and the guardian would hold the money until the minor child reaches the age of eighteen. A Will allows you to create a trust to hold those assets and designate an older distribution age, such as twenty-five or thirty, or any other age you may desire, but still provide for their earlier needs according to your directions. If you have a disabled child, it is especially important that you have a specially drafted trust to meet the needs of your disabled child.

After you have had a Will drafted for you and it has been signed and properly witnessed, then you should store it in a safe place, such as a safe deposit box, or your safe at home, or with the local Probate Court, or wherever you keep your important documents. It is important to make sure that your family knows where your original Will is kept and that they can get at it after your death.

If an adult is mentally unable to manage their financial or personal affairs, then a court needs to appoint a guardian to handle the affairs for that adult. At times, obtaining a guardian can be an expensive process. In addition, the court may appoint someone you would not want to handle your financial or personal affairs. However, if you have a Durable Power of Attorney for finances, or a Durable Power of Attorney for Health Care, you are able to appoint someone you trust to manage your financial affairs and to make your health care decisions. By appointing a competent and reliable person as your agent, it may prevent the court from having to appoint a guardian for you. The Financial Power of Attorney document can give the agent power starting the moment you sign the document, or it can spring into effect only after a doctor states that you are no longer able to handle your financial affairs. A financial power of attorney needs to be a “durable” power of attorney so that it will continue even after you become incompetent. It is very important that you give serious thought to who you are going to name as your financial agent because they will have complete control over your assets. On many occasions, an agent has acted improperly and taken the money of the person who entrusted them with the duty of handling their financial affairs as they have the power to act without court consent or review unless someone brings them before the court.

The health care power of attorney document is a very important document because if two doctors state that you are no longer able to make healthcare decisions for yourself, it gives your named agent the power to make all health care decisions for you, including the power to place you in a nursing home or community based residential facility, if you grant them the power to do so. It also give them the power to discontinue tube feeding if you allow them to do so. It is recommended that you add some language into the health care power of attorney document regarding your end of life wishes. If you have a health care power of attorney document which states your end of life wishes, then it may not be necessary for you to also have a “Living Will”. If you do not have a health care power of attorney, or if you do not grant your agent power to place you in a nursing home, then it would be necessary to obtain a guardianship for you, if it was determined that you were unable to make your own health care decisions and/or if it became necessary for you to be placed in a nursing home and that specific power was not given to the agent in the health care power of attorney document.

Other, more advanced estate planning tools include a living, or revocable trust. A living or revocable trust is established and maintained during the grantor’s lifetime and may be changed or terminated during that time. Oftentimes, a revocable or living trust is used to avoid probate. By creating a trust, the grantor transfers control of the assets to a trustee. In the case of a revocable trust, the trustee may be the grantor. The specific powers and duties of the trustee and when the trust income and principal may be distributed to the beneficiaries are determined when the trust is initially drafted. In some instances, you may want a trust to be created to reduce the amount of federal or state estate taxes which may be due at the time of your death. An irrevocable trust can also be created to transfer assets out of an individual’s estate such as an irrevocable life insurance trust. In addition, a married couple may need a marital property agreement to equalize their estates which may also save estate taxes upon the death of the second spouse. Second marriages can provide a need for special planning to avoid disinheritance of children from the first marriage and still provide for the second spouse.

In conclusion, every adult should consider having basic estate planning documents put in place for them which, at a minimum, should include a Will, health care power of attorney document and a financial power of attorney document. It is advisable that an attorney be consulted when putting these documents together so that your wishes are followed and the documents are properly drafted and signed. When calling for assistance in regard to these documents, a client should not be shy about requesting how an attorney charges for these services and what the approximate cost will be for these documents.