Wisconsin Estate Planning Legal Questions

It is my practice, and that of many estate planning attorneys, that a trust be witnessed by two persons that are unrelated by blood or marriage to the grantor, as well as being notarized.  If the orginial trust was witnessed by two people and notarized, I would follow that and have the amendment witnessed as notarized as well.  ... Read More

My first question would be why does the grantor not have a copy of their own trust?  If for whatever reason they did not retain a copy, they have a legal right to demand one.  The drafting attorney has a legal obligation to give a copy of a document that they drafted to their client.  I would recommend the grantor request a copy in writing from the drafting attorney.  If a copy is not furnished within a couple of days, the grantor should contact the Office of Lawyer Regulation for guidance on how to proceed.  ... Read More

In general, all property that has been properly moved into a Trust will avoid probate.  It appears that your parents trust was in SC.  You first step would be to contact a SC attorney who handles Trust Administration.  This can be any attorney, it does not have to be the attorney or the law firm that drafted the trust.  A Trust Administration attorney can provide you with the information and/or guidance that you need to settle your parents' estate.  ... Read More

A person can only sign a Financial Power of Attorney if they are lucid, ie. can understand what they are signing and why.  If the person is lucid, have her sign a POA as soon as possible as once her condition has deteriorated, she will be unable to do so.  At that time, the only option will be to file for a conservatorship over her financial affairs.  To be on the safe side, if there are questions about a person's mental state, you can have their doctor examine them and provide a short letter that on a certain date the patient was presented with a POA, understood the ramifications of signing it and did in fact want to sign it.  I would err on the side of caution to avoid any appearance of influence in this regard.  ... Read More

First, I'm sorry for your loss.  I know it must be hard trying to grieve your loved one and then have to deal with this.   The short answer is that if you are not an owner of a home, or are not on a lease, you have no legal right to occupy the home after the death.  Although you had permission to live there from the owner, he is now passed and that permission has expired.     The long answer is that you did have permission to occupy the premises.  If you refuse to move, the owner of the house must file an eviction action to force you to move.  This would be the only legal way for the owner to force you out.  Yes, the new owner of the house should give you 30 days notice to move.  But the question is, who is the legal owner now?  Has a probate action been filed?  Once a probate action has been filed, the Personal Representative can provide you with that notice and request that you move in 30 days or you may be subject to an eviction action.  The hard part is that you don't know how long it will take for the ownership of the house to be determined.  My suggestion would be to start looking for another place to live now.  If you find one, let the sister know that you will be moved out within 30 days.  An alternative would be to let her know that you plan to find another place and ask her to agree in writing that you will move out within 60 days.  That may buy you more time, however, I feel whichever avenue you decide to take, the end result will be the same, that being you have no legal right to live there and must vacate the premises.  ... Read More

Contact a Wisconsin attorney who does estate AND special needs planning.  You may want to use the Find a Lawyer function of the National Academy of Elder Law Attorneys (www.naela.org)   You may want to name your daughter as the beneficiary and a special needs trust for your grandson as the contingent beneficiary on your annuities (assuming that they pay after your death). If you die and your daughter inherits while he is a minor (under 18), she might have too much income for him to continue receiving SSI.  Depending on the circumstances, you may want to name your daughter and a special needs trust for your grandson to each receive a certain percentage of the annuities (and anything else in your estate). Please note that you may want one Will specificially to govern your Stateside assets and another Will to govern your assets in the country in which you live.  Both Wills should state that they only govern the assets in a certain country. There is nothing wrong with using a Stateside "care of" address.  Many Americans resident abroad have US post office boxes specifically to receive their mail, including bank statements.  Many use a service to collect and forward that mail.  ... Read More

Your father's will becomes effective upon his death and will only control those assets titled solely in your father's name with no designated beneficiaries. Assets titled in the name of a trust are controlled by the provisions of the trust. You have indicated that your father's home has been titled in the name of a family trust for 11 years. Therefore, the trustee of this trust has the authority to manage assets owned by the trust and pursuant to the provisions of the trust. Whether your father's home is an exempt asset for Medicaid qualification purposes will depend on the type of trust established by your father. For example, is his trust a revocable living trust or an irrevocable trust? I would strongly encourage your family to discuss these matters as soon as possible with a qualified estate planning and elder law attorney.... Read More

My word, there are a lot of issues to address here. You may have things you can do, but it isn't clear from the scenario you've laid out what all your options are. I recommend you contact an experienced probate/estate planning attorney in your area as soon as possible to start examining and hopefully unwinding this.... Read More

If she is on your mother's account jointly, she will have full access to the accounts before and after your mother's death. If there is a concern, your mother needs to take her off the accounts. You may want to get a guardianship of her estate so that it is properly handled and the court can oversee or appoint a power of attorney that is trustworthy.... Read More

Lee - your question depends on how your property is transferred at your death.  If your investments and bank accounts are in your name, your daughters will be able to get the funds want your will is probated and an executor is appointed.  You can avoid probate by retitling the accounts so that they are "paid on death" to your daughters. If the accounts are "paid on death", your daughters can get the funds as soon as they have a death certificate.  As for taxes, unless your total wealth exceeds $5 million, your daughters will not owe any estate taxes.  When they sell the investments, the only income taxes will be based on any appreciation that occurred after your death, since your daughters will receive a new basis, equal to the value at death, on the investments.  There will be no income taxes due on the cash in the bank accounts.... Read More

Assets, including real estate, that are titled jointly in the name of husband and wife generally pass to the surviving spouse upon the first spouse's death outside of probate. For any property that was titled solely in your father's name at the time of his death, that property may be subject to probate and should be distributed to his heirs at law where there is no will. However, in Wisconsin, a surviving spouse has certain homestead rights and other rights with regard to vehicles and personal property. You should speak with a probate attorney regarding your rights and options.... Read More

This may constitute elder abuse and/or fraud. In Texas, you would contact the Department of Aging and Disability services and possibly local law enforcement. That said, if your friend lacks capacity to handle his own affairs, he does not have much legal use for money, and giving money to someone in that circumstance would not be in his best interest.... Read More

Your question does not contain sufficient information to provide you with a complete answer. Is your father deceased? If yes, then his power of attorney became ineffective on the date of his death. If your father is still living, then (depending on the specific language contained within his power of attorney), your sister may have the ability to manage and make decisions regarding all of your father's property on your father's behalf - including real estate. To determine ownership of the property, you can contact the Register of Deeds for the county in which the real estate is located. If you own the property jointly with your siblings, you must come to an agreement together regarding who can reside in the property, how the expenses of the property are paid, and whether or not rent is collected. If you cannot come to an agreement, then a court proceeding may be required to resolve the dispute.... Read More

The answer to your question depends on your intent regarding how the home should be distributed upon the death of an owner. If the home should be distributed to the survivor, then you should title the real estate in both names, as joint tenants. However, if the home should be distributed to the survivor's estate, then you should title the real estate in both names, as tenants in common. Ideally, to protect both of your interests in the event of disability, death, or a breakup, you should have a detailed Joint Ownership Agreement in place specifying the rights and obligations of each party. A clearly written agreement in advance can avoid a messy struggle (and possibly a court battle) in the future. It is advisable to consult with a Wisconsin estate planning attorney regarding your specific circumstances.... Read More