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How to Make a Wisconsin Estate Plan

Attorney Thomas B. Burton discusses how to make a Wisconsin estate plan in 2021 and discusses the key documents that should be part of any good estate plan. Attorney Burton also discusses the differences between a Will based estate plan and a Trust based estate plan and gives helpful tips on choosing between the two types of plans for your estate.

Want to know what type of estate planning documents are best for your situation? Download a free copy of our easy estate planning guide. Obtain Your Free Will vs. Trust Estate Planning Guide.

Hello, I'm Attorney Thomas Burton, I'm an estate planning and asset protection attorney here in Wisconsin and today's topic is how to make a Wisconsin estate plan in 2021?

So in today's video, I'm going to cover the key documents you should consider having as part of your estate plan and how to get this done in the new year.

So every year at my office, I see the first quarter of the year is a good time when a lot of people think about their estate planning. They've often spent the holiday season with friends and family and it makes you think about what's important in life which is for most people, their family and ensuring that their family is taken care of if something should ever happen to them. Now here in 2020, we've all been living through the reality of a global pandemic and I think this has made it especially true for many folks, witnessing people who maybe we didn't even think had any health problems before, pass away due to Covid or complications from Covid. It really brings it home for many people.

So the thing about estate planning is it's important no matter what age you are, whether you're young or old, it's a good idea to have an estate plan in place. Anyone over the age of 18, should have estate planning document in place and the reason you do this is you provide a gift to your family, if something should ever happen to you and it really provides you with peace of mind.

So today's video, we're going to talk about how to make a Wisconsin estate plan 2021 and I'm going to give you the key documents to consider and I want this to be educational for folks. Now I am an estate planning attorney, I help people with their estate planning but whether you work with me or another attorney, I just want you to know, what you need to think about to enable you to check this off your list in 2021, if it's something you've been thinking about doing for a while, you can watch this video and it'll give you an overview of the process before you go to meet with your attorney.

So the first decision you're going to want to think about, off the top, is whether you want to go with a will based plan or a trust-based plan and the basics, I've got more videos on this, will versus trust, check that out, but today is a short video, shorter video and I just want to basically summarize that a will-base plan is public after you die. It's a private document, when you create it but after you die, it gets filed with the probate court, becomes public and it must go through the probate court process which involves time and money and lots of paperwork. So if you want to avoid probate, a will-based plan is not for you. So think about your goals and if you're one of those people that wants to avoid probate or went through, it was difficult with a relative, a will-based plan is probably not the way to go, you want to look at a trust-based plan.

A trust is private during your life and stays private after your death. The only people who have access to it is your trustee and anyone you name as a beneficiary after you're gone and you can avoid probate court on your assets through a trust-based plan. So at my office, a lot of what we favor is trust-based planning because if we're planning ahead, I like to help my clients avoid the time, expense and delay of probate court and if they're the type of person who's thinking forward, it usually makes sense to them to avoid this later for whoever they leave behind, less work for them but either one will work for you, just be aware of the two main methods and in general, a will plan costs less to set up but it's going to cost more to go through probate. So plan to spend 3-5% of your assets on the probate court process, of the estate assets and the trust plan is going to cost a little more to set up because it's more time and documents but the goal is to save you money after you're gone in the estate administration.

So now, I'll give you the key documents that should be an important part of any Wisconsin estate plan in my opinion.

So first with the will base plan, you're going to want to have the will because the will is the main vehicle for all your assets to pass through the probate court to your heirs. The probate court will assess a fee based on the value of those assets and your heirs, your personal representative will pay this fee in order to open the probate with the court.

Then I recommend a healthcare power of attorney, this names an agent to act on your behalf, if you're ever incapacitated or unable to act, in regards to your own health care affairs. So a classic example of this would be if you're in a coma, if you're in a coma and unable to communicate, you need to have this document in place. The alternative is a court-ordered guardianship and your friends or relatives would have to hire an attorney and go to court. The court would appoint an attorney to represent you since you're unable to speak or communicate and the judge would listen to the argument and see if it's proper to appoint someone to act as your guardian. So this can cost quite a bit of money, especially when two attorneys are involved. So the best way to avoid this is to put a healthcare power of attorney in place.

Next financial power of attorney, same thing but for your finances. If you're unable to act, someone can pay your bills for you, as a fiduciary and again, it's better for you to choose who you want this to be. Otherwise the alternative is another court ordered guardianship but this is a separate proceeding over guardianship of the estate, they call it. So again, if you needed to get that, you can file for both at the same time, guardianship of the person and guardianship of the estate but they're two different things and you would need to hire a lawyer, the person petitioning and the court would appoint a lawyer for the person who needs it and then the fees are paid out of your assets, for that lawyer they appoint for you.

Finally I recommend doing the authorization for last disposition. In Wisconsin, this is a special document, you can specify whether you want burial or cremation after your death and who you want in charge of your earthly remains such as your body or ashes after you're gone.

Now that's for a will plan. I think you should have all those documents as part of a solid estate plan. Sometimes people think what is the term 'Estate Planning' mean and when we lawyers talk about estate planning, we mean that comprehensive plan, not just one document. Because in my opinion, you can have a will in place but lack a complete estate plan because of these other holes about not having a financial power of attorney or a healthcare power attorney which could require like I discussed that guardianship which would still end up costing you and your relatives money.

So then if we go with the trust-based plan, we add to these documents, all of the above, as part of our trust plan plus a revocable living trust. Then what we call a 'pour over will' and this is a will that says if there's anything I forgot to transfer into my trust during life, I pour it over into the trust upon my death. So it's like an insurance policy to ensure everything gets into the trust and flows through it and then at my office, we pair this with a transfer deed for any real estate, real property, if you have your house, usually the primary asset. I will ask you to bring me a copy of that deed, so we can prepare that right away and on the same date, you sign your trust, we'll sign this deed to make sure your real estate gets into the trust because for the vast majority of people, the real estate they own is one of their largest assets and it's the asset I see pulling people into probate consistently over and over because the smallest state probate limit in Wisconsin is $50,000 and with the skyrocketing values of real estate in recent years, for many people, if they own a single family home, the value is often above that $50,000 limit. So think about your assets and if you have a small estate below $50,000, it might not make sense, probably doesn't make sense, to put a trust plan in place. I mean it's up to you, whether you want to spend that money to avoid probate, on the front end but if you have above that limit, avoiding probate can often make good financial sense and like I say, many people is the real estate, that will pull them into this probate process.

So the 'Pour over will'. is designed if we forget something after you form your trust, that it would still get poured into the will after your death. Remember the trust becomes the primary vehicle and we want everything to pass through the trust, non-probate as a private administration after your death.

So these are the key documents that are the foundation of any good Wisconsin estate plan. I hope you've enjoyed today's video and that it gives you an overview of the issues you should think about as you're thinking about your own estate planning in 2021 and preparing to meet with your attorney. Now I work with folks all over the state, both virtually and in person and if my office can help you, just let me know. Otherwise use this as a list to review before meeting with your attorney.

Thanks for watching and we'll see you next time.

© 2021 Burton Law LLC. All Rights Reserved. Transcript and captions provided for ease of access for the hearing impaired. For questions about this topic, or to suggest a topic for a future blog post, please contact the office.


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