Information on the Estate Planning Process

Q: What is a Will?

A Will is a written document that allows you to accomplish the following:

1. Designate who will receive your estate after you die
2. Appoint a guardian for your minor children at the time of your death
3. Determine whether there will be any postponement of distribution to beneficiaries, particularly if the beneficiaries are minors
4. Determine who will serve as your personal representative to be in charge of your estate

The best time to consider preparing a Will is once you acquire assets and is particularly important if an individual has minor children. Under a Will, as set forth above, you can name a guardian for your minor children and postpone the distribution of your estate to your children at a specific age or ages in a trust within the Will itself.

If you should happen to die without a Will and your estate needs to be probated, the court would appoint a personal representative to administer your estate. Without a written Will, the court is required to appoint a bond. A bond is a surety or an insurance policy which insures the estate against any theft, embezzlement or mismanagement of estate assets by the personal representative. A bond can be expensive. Therefore, one advantage in creating a Will is to waive the bond requirement, which would save the estate some money.

Q: How do you make a Will legal?

For a Will to be valid it must be in writing, and must be signed and dated by the person making it. The one making the Will must sign the Will in the presence of two (2) witnesses, and the two witnesses must sign in the presence of each other and the one making the Will. Witnesses should not be beneficiaries named in the Will or heirs that are designated by law. A person can write his or her own Will providing it complies with the statutory requirements. It is important that you consult an attorney who can give advice not only about the proper drafting of the Will, but other aspects of your estate planning.

Q: When can a Will be challenged?

A person can attempt to challenge a Will in court by showing:

1. The one making the Will was under duress or undo influence at the time the Will was made
2. The one making the Will was incompetent or unable to understand the terms and conditions of the Will itself
3. The Will does not meet the valid requirements above regarding signatures

Q: Where should I keep my Will?

A Will should always be kept in a safe environment free from theft, fire or other damage. Some people keep their Will in a safety deposit box, however a personal representative may have limited access to the safety deposit box.

Q: What is a Living Trust?

A Living Trust is a written agreement drafted to control the distribution of your property while you are alive and then the control of your property after your death. Upon creation of a trust document, your assets are then re-titled into the name of the trust itself. As part of the trust document, you name trustees who will manage the affairs of your trust during your lifetime and who will take over upon your death. Usually the owner of the assets placing the assets into the trust is the initial trustee. Upon the death of the one creating the trust, the assets pass pursuant to the terms and conditions of the trust to the designated beneficiaries. Under this system, there is no need to probate one’s estate if the trust is properly drafted. A Will is typically used along with a trust in the event there are trust assets that were inadvertently not transferred into the name of the trust. The Will would then provide that all such assets be transferred pursuant to the terms and conditions of the trust. Under the terms of the Will, you could also name a guardian for your minor children.

Q: What is a Durable Power of Attorney?

There are basically two types of powers of attorney in Wisconsin. One is a financial power of attorney and the other is a healthcare power of attorney. Under the terms of a Financial Durable Power of Attorney, you authorize a person to act on your behalf in financial matters. This person is called your power of attorney or agent. The exact nature of the agent’s duties depends upon the terms of the financial power of attorney. Generally speaking, a financial power of attorney has authority to sign legal documents, pay bills, buy and sell real estate and to basically take other actions on your behalf. The authority of a financial power of attorney ends at your death. Thereafter, either the personal representative or trustee will take over your estate.

Under a Durable Power of Attorney for Healthcare, you give your agent the authority to make healthcare decisions if you are unable to make them. Under a healthcare power of attorney, you can designate what is known as a Living Will. Under a Living Will, you are allowed to state in writing what preferences you have about life-prolonging medical treatment. Under a Living Will, you are able to authorize the withholding or withdrawal of life-sustaining procedures, particularly if you have a terminal condition or you are in a persistent vegetative state. 

Financial and healthcare powers of attorney are important estate planning documents to have. Without them, if you should become either mentally or physically incapable of taking care of your affairs, you would be required to go to court to have a guardian appointed for you to make such decisions. A guardianship proceeding can be costly, as it may involve the input of physicians and psychiatrists to verify that you are unable to take care of your personal affairs and are in need of a power of attorney. This procedure requires court supervision and a guardian is required to file an annual guardianship account with the court.

A “Durable” Power of Attorney means that if the person who originally makes the power of attorney later becomes mentally or physically disabled, the power of attorney still remains in effect, despite the disability.