Category: Estate Planning Blog

7 Steps to Navigating Probate

Have you ever been asked to be the Personal Representative (commonly known as an Executor) of someone’s estate after death? It’s not an easy role and often brings complicated feelings. Many people view it as an honor. It can be comforting to know that you were respected and trusted by the deceased. However, it can also stir up feelings of sadness and grief.

While it may be difficult, it’s important to focus on the job duties and try not to let strong emotions distract you from the work that needs to be done. Probate is a complex, legal process. Many Personal Representatives are surprised by the amount of time it takes and all the different responsibilities involved. Many Personal Representatives report feeling overwhelmed. The seven steps below will help provide some background on what you can expect during the probate process.

Step 1 – Before accepting the role of Personal Representative, you need to ask yourself the following:
  • Am I comfortable being the person responsible for financial record-keeping?

The Personal Representative is responsible for managing the finances of the estate. Personal Representatives are held responsible for any misconduct.

  • Am I willing to manage and deal with the reactions of family and loved ones?

A Personal Representative’s Family relationships often take a hit and because of all the work involved, Personal Representatives are often the last to grieve.

  • Am I willing to put in the time necessary?

In Wisconsin, the probate process can last as long as 6- 18 months so it can be a huge time commitment.

If you can answer yes to the above questions, proceed to Step 2. If not, then you can (and probably should) decline the role.

Step 2 – File a request to begin probate.

Once you decide you will accept the role, if you haven’t already, you’ll want to contact an attorney with extensive probate experience to help guide you through the process. First you will have to file the necessary paperwork with the probate court in the county where the deceased was living at the time of death. You will have to file the original will (if there is one). The Court will determine whether you are  approved as Personal Representative of the estate and the probate case is officially opened.

Step 3 – Notify all creditors, beneficiaries and heirs that the estate is in probate.

The probate process must allow time for creditors to be notified, The Personal Representative is required to post a notice in the newspaper alerting any creditors of the deceased and setting a date for claims to be filed with the court.  In Wisconsin, creditors are prohibited from filing a claim against the estate after the claim period has ended.

Step 4 – Freeze and calculate the assets.

As the Personal Representative, you’ll want to make sure that personal tangible items stay on the property. It is probably also a good idea to change the locks once you are appointed by the court.  In addition, you will need to account for all of the assets of the estate such as:

  • Bank and retirement accounts
  • Stocks and bonds
  • Real estate
  • Life insurance
  • Titles to cars, boats, RVs and other vehicles
  • Personal effects such as jewelry, art and coin collections.
Step 5 –Determine liabilities and settle the debts of the estate.

Personal Representatives are responsible for making sure all required taxes are paid. A final income tax return will need to be filed with both state and federal. Also, the estate may have to file its own tax returns if the assets of the estate or income in the estate are over certain limits.  You also might have to do a little investigating to determine what bills and debts exist. In addition to taxes, common final debts include:

  • Hospital and doctor bills
  • Insurance premiums
  • Credit card statements
  • Mortgages
  • Property taxes
  • Funeral costs
  • CPA fees
  • Probate fees
  • Personal, student or other loans
  • Phone and/or utility bills
Step 6 – Once debts are paid, distribute the remaining assets

When in probate, you must adhere to a specific process for distributing assets to beneficiaries. Personal Representatives will need to list each beneficiary and record the main assets each will receive. The process can be complicated by emotions and in-fighting among relatives. It is not uncommon to hire a mediator to help keep the family intact.

Step 7 – Close the estate

After all the assets have been distributed, you’ll submit the receipts and records to the court. The Personal Representative is responsible for filing the accounting report. Probate won’t close until every penny has been accounted for. If there is a discrepancy with your final accounting filing, it will be rejected, and the probate process will remain open.

Many Personal Representatives feel overwhelmed when going through probate. But, with the right attorney at your side, the process is manageable. They will analyze tax and financial matters, help with distribution of assets and make sure all necessary papers are filed with the probate court. Plus, they can help you manage family expectations in a personable and effective manner.

 

If you are going through probate, or expect you might be in the future, let us help. 

 

About the Author 

Patrick Furman, Estate Planning and Probate Attorney

Patrick Furman is an attorney with Epiphany Law and has been practicing Law for over 15 years. He focuses his practice on all aspects of estate, succession and tax planning as well as probate avoidance, irrevocable and revocable trusts, life insurance spendthrift and special needs trusts along with wills durable power of attorney and advanced health directives.

 

 

Protecting Your Financial Health from Nursing Home Costs

No one likes to think about getting older, but aging is unavoidable. And, as we mature, taking care of our health and wellness becomes even more important. Chances are, you’re already making good nutrition and exercise choices. But, how would you describe your financial health? Are you protecting your assets with an estate plan?

In 2018, the average cost of nursing home care in Wisconsin was over $8,300 per month. Unfortunately, nursing home expenses are anticipated to continue to rise three times faster than the general rate of inflation.

If you need supportive care from a nursing home because of aging and chronic conditions, it’s important to understand that health insurance or Medicare will not cover these massive costs. Now is the time to be pro-active. Learn how you can receive the care you need and protect your financial health at the same time.

Know your options when it comes to protecting your assets.

It is estimated that nearly half of all people that reach age 65 will need long term care assistance. You have three basic choices for care providers:

In-home care 

While most people prefer to remain in their homes, this isn’t always possible. To help determine if you are a good fit for in-home care, it is crucial to be honest about how much care you truly need. As of 2014, the average annual costs for in-home care in Wisconsin was $50,336.*

Assisted living facility

This type of facility is best suited for older adults who do not require constant care but may need assistance with medication management or other basic tasks. For a one bedroom single occupancy room, the average cost in Wisconsin was $46,200.*

Skilled nursing facility

This type of facility is for people who need medical care or daily therapy services from a registered nurse. It offers care 24/7. For a semi-private room in Wisconsin, the average annual cost was $87,363.*

First things first. Make sure your have a well-drafted estate plan.

Every estate plan needs to address the essentials: a will or trust, financial power of attorney, health care power of attorney, a living will, HIPPA waiver and a marital property agreement. If you have already completed an estate plan, it is important to re-evaluate it every couple of years to determine if it needs any updating, especially if there has been a change in your health. You’ll want to make sure your plan and the representatives listed continue to reflect your wishes. If you have not yet completed an estate plan, this will be your first step to protecting your long-term financial health.

*All prices are based on the 2014 Genworth Cost of Care Survey – Wisconsin.

 Long Term Care Insurance

Another important step is checking into long-term care insurance. Though long term care insurance can be expensive, it will provide a source of payment, in some cases, for in-home care and assisted living (whereas Medicaid will provide payment for only nursing homes).  A long term care policy, in most cases, will give you more options regarding your long term care.

Protecting your assets

Unfortunately, some people will not be eligible for a long term care policy because of finances or health conditions. However, you may still be able to protect some, if not, all your assets from the costs of nursing home using a couple of different strategies.

If you plan far enough ahead, you may be able to protect assets through the use of an irrevocable trust. An irrevocable trust requires you to give up control of the assets transferred to the trust.  However, a properly drafted irrevocable trust generally allows you to minimize taxes, protect your assets from the nursing home and still, in some cases, give you access to the funds.

You might also want to consider asset conversion. Many people mistakenly believe they can’t qualify for Medicaid because they own certain assets. But, the truth is, Medicaid allows for some flexibility.

The following assets will not be considered (or “counted”) by Medicaid.
  • Cash up to $2,000
  • Primary residence given the Medicaid applicant or his/her spouse resides there and the equity value is at $878,000 or less
  • One car at any current market value
  • Personal belongings and household items such as furniture and appliances
  • Pre-paid funeral and burial arrangements
  • Personal property that is essential to a person’s self-support (for example: farm, rental properties or real estate investments)
  • For a married couple, the non-institutionalized spouse can exempt half of the married couple’s countable assets up to a maximum of $126,420 for 2019 and the non-institutionalized spouse’s retirement plans.

Please keep in mind that Medicaid is a complex government program, jointly funded by the state and federal government. The guidelines are complicated and frequently change. The best way to make sure your long-term financial health is protected is to work with an attorney who understands Medicaid and has extensive experience and elder law knowledge. They can take the guesswork out of the estate planning process and give you confidence about your financial future.

Estate Planning Attorney Patrick Furman

About the Author

Patrick Furman is an attorney with Epiphany Law and has been practicing law for over 15 years. He focuses his practice on all aspects of estate, succession, and tax planning as well as probate avoidance, irrevocable and revocable trusts, life insurance, spendthrift and special needs trusts, along with wills, durable powers of attorney and advanced health directives. To learn more about protecting your assets, ask Pat a question.

Protect Your Graduate with Estate Planning Documents

Some may feel that estate planning is only for the rich and retired. That is simply untrue. Regardless of the amount of assets, or age, it is important that all adults have an estate plan.

The law says that kids become legal adults the day they turn 18.  Yes, they can vote…but what else? It also means that when a child turns 18, parents no longer have the authority to make health care and financial decisions for the child without written legal authorization.

Imagine being a parent of an 18 year-old.  Now imagine that the child is in the hospital due to an emergency situation. Without the proper planning, doctors are unable to share information with you.

Imagine your 18 year-old is a victim of fraudulent use of their credit card.  As the parent, since your child is a legal adult, banks will not communicate with you about this.

So what is the solution?

Together, parents and children should review and discuss several important legal documents with the understanding that it’s the child’s right to decide how to proceed. Important documents to review include:

  • Medical Power of Attorney – Gives parents the authority to make medical decisions on a child’s behalf if the child is unable to do so.
  • Living Will – States a person’s wishes about life-extending medical treatment.
  • HIPAA Release –Allows heath care providers to release medical information to designated people.
  • Durable Power of Attorney – Grants parents the authority to sign documents for their child. For example, this allows a parent to manage financial accounts or file a tax return on behalf of the child.

Without these documents, you will need to go to court to act on behalf of your child.

Estate Planning is not a DIY Project

If you are like me, you take pride in completing a DIY project. On top of doing the project yourself, you saved yourself a little bit of money and maybe some hassle (like being home to let the contractor into you house.  Some DIY projects are easy such as hanging a picture; others are more challenging such as electrical work.  I’ve learned over the years that there is a time and a place for DIY projects and a time for professionals to be called. Often, the risks of incorrectly doing a project outweigh the costs of calling a professional. This holds true for estate planning as well.

Some people think Estate Planning can be a DIY project. You simply go online to a website and plug in your information and, magically, a will or power of attorney is produced.  You get it notarized and you are ready to go.  It seems easy enough.  However, when does a DIY’er know if they are doing it correctly?   Just like doing a house project you sometimes do not know all the ramifications of what you are doing.  That wall you removed may actually be load bearing and now you have a problem.  By attempting to use a DIY estate planning tool, people can end up causing more problems.

For example, a will must be properly executed to be valid.  If a will is not executed in front of witnesses, then the court may throw it out.  This is exactly what happened to a gentleman in New Jersey.  Matter of Will of Feree.  He did his own will using a do-it-yourself program.  He also decided to add some additional handwritten requests to the preprinted form.  These handwritten remarks ended up causing a fight that went to court.  The New Jersey Courts found that the handwritten part of the will was not admissible (and therefore, not enforceable) because it was not properly signed by Mr. Feree.  Mr. Feree saved some money doing his own will but it lead in this circumstance to 1. Family Dispute; 2. Lawsuits; and 3. Ultimately the defeat of his wishes.  This could all have been avoided if he would have spent a few dollars and went to an estate planning attorney.

So what are some of the problems with DIY estate plans:  First, estate planning is not just completing forms.  An experienced estate planning attorney will go through various options available to you and your family and the best ways for you to meet your goals.  Every family is a little different and not all situations should be treated the same.  An experienced estate planning attorney can assist you with achieving the best outcomes such as protecting your hard earned money from your beneficiaries’ predators and creditors.

An attorney, because of their experience, can anticipate where there may be future problems either with the family or with the administration of your estate.  An attorney can also make certain that the language you use actually creates a testamentary intent.  Your DIY will may be written in a manner that the language is not dispositive and thus renders the will unenforceable.  An attorney can also guide you through certain income and estate tax issues that can arise on death.

Much like the home project that goes haywire, the DIY estate plan can cost families more time and money than if  a professional was called in the first place.  The role of an Estate Planning Attorney is to be a counselor in explaining your different options and pointing out some of the pitfalls that may be lurking. Computer generated forms are simply not comparable to the advice that an Estate Planning Attorney can provide. The estate planning process should not be scary.  It is much more frightening to think about what could happen if your plan is defective.

Pat has been practicing law for almost 20 years and focuses his practice on all aspects of estate planning. Understanding that the estate planning process is very personal, Pat takes the time to listen to his clients’ goals and concerns and empowers his clients so they can make decisions that can produce the best outcomes.

Morning Business 60 – Estate Planning for the Business Owner

Our Mission at Epiphany law is to positively impact lives through education, empowerment, and an innovative approach to problem solving.  One of the ways we live our mission is to host meetings that allow business owners to share ideas, learn about various business topics, and share best practices relevant to business professionals. The goal of Morning Business 60 is to provide information to business owners which will assist them in running their business effectively and efficiently. It is free advice, networking, and includes a light breakfast and coffee all at no cost to you.

At  our December Morning Business 60 we will discuss estate planning for the business owner. Business law and estate planning are often viewed as separate and distinct. But for the owner of a closely held business, the two must, but often fail to, overlap. The best planning results from a team approach which efficiently combines both.

Empower yourself as a business owner and join Epiphany Law for Morning Business 60 – Estate Planning for the Business Owner on December 6, 2018 from 7:30 – 8:30 am at Epiphany Law in Appleton (2800 E. Enterprise Ave). Registration is required; contact Epiphany Law at 920-996-0000 or marketing@epiphanylaw.com to register or for more information.

We’re Moving!!

We’ve outgrown our current  office and we are relocating on July 27, 2018 into a larger building with advanced technology just a few blocks from our existing location. The move will house our growing staff and will have the space to host seminars, workshops, and CLE classes for attorneys and advisors.

Our founder Kevin Eismann expressed, “I’m so proud of our team and the tremendous growth we’re experiencing.  I’m looking forward to the opportunities that lie ahead. The new building will accommodate our clients more effectively and will give us additional space to continue to host educational events.”

The new state of the art training center will regularly be used by our team to empower clients, advisors, and business owners.

Since the firm was founded in 2004, the team has grown to over 20 employees. The entire staff will make the move from our current 3600 square foot location at 4211 North Lightning Drive to the 8400 square foot location at 2800 East Enterprise Avenue.

A ribbon cutting ceremony and open house will be held August 15, 2018 from 4pm-6pm at 2800 East Enterprise Avenue, Appleton.  The ribbon cutting will be at 4:30pm. Everyone is invited to attend.

Preserving Harmony at the Family Cottage

Owning a family cottage can undoubtedly create numerous memories for you and your family. Whether it be boating, fishing, hunting, swimming or just time away, these memories are cherished.

Unfortunately for some, a family cottage can also be the source of great conflict and hostility for successive generations.  When two parents own the cottage, the chances for disagreement are minimal.  However, when the time comes and the cottage is passed to the four children, it is more likely that there will be disagreements. In this example, suddenly, the cottage has four owners instead of two.

When multiple people inherit a cottage, hunting land or other property, they typically take the property as Tenants in Common.  This means that each owner has an undivided interest in the whole of the entire property so that even a 1% owner has the same right to occupy the entire property as a 99% owner.  Also, a tenant in common can sell, give, or loan her interest to anyone she chooses. Outright ownership by multiple family member is not ideal when the goal is to keep the cottage in the family as a source of happy memories.

Fortunately, with proper planning there are ways to make sure any potential problems are avoided. One way to allow for more harmonious ownership is creating a Family Cottage LLC.  A Family Cottage LLC will change the way the property is owned.

First, let me explain briefly some of the relevant background of LLCs.  The owners of an LLC are referred to as members.  The members can control the governing of an LLC by entering into an operating agreement, with written rules, obligations, restrictions and conflict resolution procedures.  LLC members can also appoint a manager of the LLC to centralize decision making and operating control in one person.

A Cottage LLC does not have to be complicated and there are many reasons why it may help:

  • An LLC can protect owners from liability
  • An LLC Operating Agreement will dictate the capital contribution rules for each member of the Cottage LLC. Meaning each member will be responsible for their share of the expenses.
  • An LLC Operating Agreement will define a fair method for dividing up and alternating use of the prime times.
  • An LLC will assign responsibilities for management tasks such as cleaning and maintaining the house and the yard.
  • When time comes, for one owner to sell or transfer her/his shares, a Cottage LLC allows for flexibility and minimizes the risk of a forced sale.

Ensure the future of your family cottage will continue to be a cherished, harmonious place to create memories, by contacting us to help you create a Cottage LLC today.

Protecting Children with Special Needs

 

Special Needs Trust

Parents with children with disabilities are faced with unique challenges. One of the major concerns of parents of a child with special needs is how to properly leave money to the child.

Because most children with disabilities will receive some sort of public benefits to help pay for medical and long-term care, it is of vital importance that the disabled child not receive assets directly or have money gifted to them personally. Even for a child who does not utilize public benefits it is important to understand that their child may be at risk to creditors and other people who may want to take advantage of them.

Because of these above reasons, a Special Needs Trust becomes a necessary tool for a person with disabilities.  Mom and Dad are able to leave a legacy to their child but without disqualifying the child from public benefits. Other family members, such as grandma and grandpa, can leave gifts or a legacy to the disabled child without a worry that the child will become a target from unsavory individuals. As a result, these funds will then be available to supplement the needs of the child in the future.

To learn more about  Special Needs Trusts visit our site.

Estate Planning is Not a DIY Project

So if you are like me, you take pride in completing a DIY project. Even though I feel a sense of satisfaction when I complete a project, I’ve learned over the years that there is a time and a place for DIY projects and a time for professionals to be called. Often, the risks of incorrectly doing a project outweigh the costs of calling a professional. This holds true for estate planning as well.

Some people think Estate Planning can be a DIY project. These people find online tools and services to complete estate planning documents.  By attempting to use a DIY estate planning tool, people can end up causing more problems.

Over the years, I have helped people who come in after they realized there were problems with their DIY estate planning documents. Some of the problems these DIYers experienced include:

  • Institutions did not accept their DIY power of attorney
  • The online forms were not in sync with Wisconsin laws.
  • Errors were made because they misinterpreted the online forms
  • Unintentionally disinherited assets

These problems ended up costing the DIYers and their beneficiaries more time and money than it would have if they called a professional in the first place. These issues may have been avoided by speaking with an experienced Estate Planning Attorney up front. The role of an Estate Planning Attorney is to be a counselor in explaining your different options and pointing out some of the pitfalls that may be lurking. Computer generated forms are simply not comparable to the customized service and advice that an Estate Planning Attorney can provide.

Legal Documents for Your 18 Year Old

The law says that kids become legal adults the day they turn 18.  So what does that mean?  Yes, they can vote…but what else? When a child turns 18, parents no longer are able to make health care and financial decisions for the child without written legal authorization.

Imagine being a parent of an 18 year old.  Now imagine that the child is in the hospital due to an emergency situation.  Without the proper planning, doctors are unable to share information with you.

Imagine your 18 year old is a victim of fraudulent use of their credit card.  As the parent, since your child is a legal adult, banks will not communicate with you about this.

So what is the solution?

Together, parents and children should review and discuss several important legal documents with the understanding that it’s the child’s right to decide how to proceed. Important documents to review include:

  • Medical Power of Attorney – Gives parents the authority to make medical decisions on a child’s behalf if the child is unable to do so.
  • Living Will – States a person’s wishes about life-extending medical treatment.
  • HIPAA Release –Allows heath care providers to release medical information with designated people.
  • Durable Power of Attorney – Grants parents the authority to sign documents for their child. For example, this allows a parent to manage financial accounts or file a tax return on behalf of the child.

Without these documents, the courts will make decisions for you. Therefore, it is important to have this difficult discussion with your children.