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There have been no significant changes to Wisconsin Estate Planning laws for 2023, however, this article will discuss Wisconsin Estate Planning Laws.

There have been no significant changes to Wisconsin Estate Planning laws for 2023, however, this article will discuss Wisconsin Estate Planning Laws.

What is a valid will in the state of Wisconsin?

In the state of Wisconsin, for a will to be valid, it must be executed by a testator, which is the person who is creating the will, the will must be in the testator's own writing and the testator must sign and date the will. Most importantly, there must be two witnesses who witness you executing the will and the witnesses must sign the will. The witnesses can sign the will after they witness the testator sign the will. If the witnesses were not present when you executed the will you can direct the witnesses verbally to inform them that the signature on the will is a true and accurate signature of the testator. The witness’s requirement to the will in the state of Wisconsin cannot gain an interest in your estate, they cannot be named beneficiaries of your will or stand to inherit anything else from your estate.  

Can I write my own will in the state of Wisconsin?

You may write your own will in the state of Wisconsin as mentioned above. It is advisable that you seek the services of an attorney to help you with the drafting of your own will so that you protect the interests that are in your estate that your beneficiaries are seeking to inherit. There are many aspects to estate planning laws in the state of Wisconsin and an attorney can help you with every major aspect of your estate planning process and our Attorneys at O’Flaherty Law are highly experienced with the estate planning process and can help guide you through the process.

Can I change my will or revoke my will in the state of Wisconsin?

In the state of Wisconsin, you can make changes to your will if you wish to do this you must create what is known as a codicil a codicil is validly executed when the testator complies with the same rules as creating a will. You can revoke the will by doing any act that shows your intent to terminate the will, which includes burning, tearing apart, scratching out the will. Once you effectively revoke your will you can create a new will which will direct your current wishes.  

Estate planning in Wisconsin

Where should I place my will once I create a validly executed will in the state of Wisconsin?

A will is a very important document that must be kept in a safe condition, it is advisable to place the will in a safe-deposit box, you can purchase one from a bank or keep one in your home. You may register your will in the probate court for the county in which you reside. It will be important that upon your death that your personal representative have access to your will after your death. Your personal representative should be given a copy of your will, the reading of your will transpires after your funeral, a personal representative should have access to your will so that the personal representative can carry out your last wishes pertaining to your funeral.

How can my will be challenged in the state of Wisconsin?

In the state of Wisconsin your will can be challenged by a showing of undue influence:

  1. Undue influence or duress
  • That at the time of the execution of your will you were susceptible to being subjected to undue influence by the person who is alleged to have committed undue influence upon you while you created your will. The court will take into account the testator's age, mental and physical health, and the testator’s ability to hand personal financial and business affairs, and lastly the testator's personality in efforts to determine if you were subjected to undue influence. The court will also look to whether or not the testator is considered to be strong-willed, independent, stubborn, capable of taking care of their personal and financial affairs, or whether the testator needs assistance.
  1. Opportunity to commit undue influence
  • It must be proven the person that is alleged to have committed undue influence over the testator had an opportunity to commit undue influence over the testator. The court must find that the alleged person that committed the undue influence had close contact with the testator or a close relationship because of living or working conditions or personal relationship.  
  1. Disposition to influence
  • It must be shown that the person alleged to have committed the undue influence of the testator had a willingness to take from the testator’s estate by doing something that would be considered to be wrong or unfair. Evidence must also be shown to the court that the person alleged to have committed the undue influence wanted to take an unfair advantage of the testator in order to gain a financial benefit from the testator’s estate.
  1. Coveted Result
  • It must be shown that the result was caused by the undue influence. The court must find that the person alleged to have committed the undue influence was expected to be excluded from the testator’s bounty. And whether or not the result was caused by undue influence and that this was an unnatural result. The court will look to see if it was “unnatural” by looking at all of the facts and circumstances.  

Your will in the state of Wisconsin can also be invalidated by a showing that you lacked the mental capacity to create a will. This can be proven if the testator was mentally incompetent to create the will at the time it was executed or was unable to understand the nature of the instrument that the testator was executing at the time of the will’s creation.

What if I die without a will in the state of Wisconsin?

If you happen to die without a will you die in what is legally known as dying “intestate” what this means for you legally the court will appoint what is known as a personal representative of your estate whose job will be to distribute your entire estate to your spouse who survives you. Having a will in the state of Wisconsin allows you to appoint who you want to be the personal representative of your estate. You can direct the appointed personal representative of your estate who is a resident of the state of Wisconsin to not post a surety bond which will save your estate a substantial amount of money.

If you have children that were born outside of your marriage your spouse who survived you will retain half of the marital property of the marriage and receives half of the rest of your property, the remainder of your estate will be split in equal shares among your children from the marriage and from outside of the marriage as well.

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What if I do not have a spouse when I die or I have no children when I die intestate in the state of Wisconsin?

If there is no spouse that survives you, you also do not have a registered domestic partner, or children that survive you, the remainder of your estate will go to your other relatives that survived you. In the state of Wisconsin, the order in which your relatives will take from your estate will proceed in the following order:

  • Your Mother and Father
  • Your Brother and Sisters
  • Your Nieces and Nephews
  • Your Grandparents
  • The descendants of your Grandparents

Note that if you do not have heirs that are descendants of your Grandparents then the Wisconsin State School Fund will receive all of your property.

What if I die without a will intestate in the state of Wisconsin and I have minor children?

If you die intestate without a will in the state of Wisconsin you are at the court’s mercy in which a Wisconsin family court judge will decide who will raise your children, this person is called the guardian. If your minor children inherit assets from your estate the court will place the assets in a guardianship account, if you create a will, you can bypass this and have the person named in your will who will be the guardian of your children.

In the state of Wisconsin what property will pass outside of my will to my name beneficiaries in my will?

  • Transfer on Death Accounts, which go directly to the named beneficiaries on the account immediately upon your death.
  • Payable on Death Accounts, which go directly to the named beneficiaries on the account immediately upon your death.
  • Real property held in joint tenancy will pass immediately to the surviving joint tenant upon your death.
  • Life insurance and funds in IRA or other retirement pension plans will pass immediately to the beneficiaries upon your death.
  • Marital property goes directly to the surviving spouse upon your death, real property that is named with both spouses on the title to the real property.

Note that a will is not necessary to pass these types of property to the named beneficiary but a will is always a good option for other types of property and assets that are in your estate.

Is a will that was written in another state valid in the state of Wisconsin?

A will that was created in another state will be valid in the state of Wisconsin if the will complies with the state of Wisconsin will requirements that are listed above in this article. A will also be valid if it is valid in the state where you signed our will while you were staying there or if you were living there either situation suffices.

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What is a trust created by a will in the state of Wisconsin?

A trust created by a will in the state of Wisconsin is where you can utilize your will and create a trust upon your death which will hold your property for the trust beneficiary or trust beneficiaries in the state of Wisconsin. What happens is that you will name a trustee to manage the trust the trustee can be anybody you choose or a bank or trust company the trustee owes duties to the beneficiaries of the trust and is responsible for protecting the trust assets, paying the trust beneficiaries income earned from the trust, financially managing the trust, and terminating the trust in accordance with the terms of the trust.

What is a living trust in the state of Wisconsin?

A living trust in the state of Wisconsin is a trust that controls your property while you are alive, when you pass away the trustee controls the property upon your death. As long as you are alive you are the trustee of the trust and the trust property is treated as if you still owned the property. You will essentially sign paperwork that will give property to the trust. A living trust is a valuable tool in the estate planning process because of the fact that you may avoid probate court when you die as the property will pass to the trust beneficiaries automatically upon your death.

Do you still need a will in the state of Wisconsin if you have a living trust?

You will still need to create a validly executed will in the state of Wisconsin even if you have a living will. There might be property that is outside of the trust that is not contained in the trust a will would transfer that property into your trust after your death. In the event that your estate receives money after your death such as the result of a wrongful death lawsuit award, the proceeds of the wrongful death settlement must be transferred into the trust. A will also directs who will serve as the personal representative of your estate and also who will be the guardian of your children after your death. A personal representative of your estate has more power than your trustee of the living trust, such as pursuing lawsuits on your behalf after you die such as a wrongful death lawsuit.

What is a durable power of attorney in the state of Wisconsin?

In the state of Wisconsin in the event that you become mentally or physically incapacitated you will want to plan ahead for this situation by creating a durable power of attorney. A durable power of attorney appoints a person who is named as your agent to act on your behalf for your financial matters. The durable power of attorney documents lays out the agent’s rights to act on your behalf and will give the terms and conditions of the amount of power the agent will have to act on your behalf. These rights will include the authority to sign legal documents, to pay your bills, to buy and sell real property, and to take other actions on your behalf that pertain to your financial dealings.  

A durable power of attorney goes into effect when you have the document signed and notarized by you and the agent and will take effect immediately upon its execution. You can also list another date in which the power of attorney will take effect such as when you become mentally or physically incapacitated. If you list a future date or event which will activate your power of attorney this is what is known in the state of Wisconsin as a springing power of attorney.  

There are many ways to determine if you are mentally or physically incapacitated a doctor or a judge may determine if you are mentally incapacitated and no longer able to complete your own decisions.  

A durable power of attorney terminates upon your death, the agent no longer has the power and control over your financial affairs. If you would like the agent to take care of your financial dealings after your death you need to name them as your personal representative in your will.

What is a durable power of attorney for healthcare in the state of Wisconsin?

In Wisconsin a durable power of attorney for health care authorizes your agent to make health care decisions for you when you are unable to do so by becoming mentally or physically incapacitated. It is important to appoint your durable power of attorney for healthcare as someone that you wholeheartedly trust. This is a very big responsibility to have because the agent will make all of your medical decisions. Your agent must know what your healthcare wishes are so that you are able to have your health care wants and needs taken care of once you become physically or mentally incapacitated.  

The state of Wisconsin has requirements in order to be valid it is a wise idea to consult with an attorney regarding a durable healthcare power of attorney our attorneys at O’Flaherty Law are highly skilled and knowledgeable about Wisconsin durable powers of attorney for healthcare so reach out to us today and schedule a consultation regarding your durable healthcare power of attorney.

What should I know about my Wisconsin durable power of attorney?

If you become incapacitated and unable to make decisions for yourself and do not have a durable power of attorney, you will then need to ask the Wisconsin probate courts to appoint a guardian for you. Appointing a guardian for you is a very time-consuming task that can take a long time to complete. Your family members will have to hire a lawyer to appoint a guardian and a court hearing will be held. A doctor must prove through medical evidence that you are incapacitated to a point that you can no longer handle your own personal financial or healthcare affairs, if you are able to you must attend the court date in person or via zoom court proceedings.  

What can my agent under my power of attorney do for me?

The agent must sign the power of attorney documents as the agent for the principal. The agent needs to keep the power of attorney documents in a safe deposit box or with an attorney. The agent should make copies of the power of attorney documents. Power of Attorney documents when copied have the same authority as the original document. Basically, keep the power of attorney documents in a safe place.

The agent must record in the register of deeds in the county where real property is located any real property or real estate that is bought by the principal's agent under the power of attorney documents.  

An agent subject to the power of attorney can handle all of your business for you such as managing your bank accounts, pay your bills for you, buy and sell real property on your behalf, handle your business affairs, apply for governmental benefits, file your taxes on your behalf, hire workers for your personal needs, hire lawyers on your behalf, hire accounts on your behalf, make gifts on your behalf, transfer your assets to a trust and more. You may lay out in the terms and conditions of the power of attorney the agent’s specific powers.

Can my agent serve as both my power of attorney for my finances and for my healthcare?

In Wisconsin your agent can serve as both your agent for healthcare and for your financial affairs, this is a fairly common situation because the agent is the person you trust the most. You may also appoint separate individuals to serve has health care power of attorney and financial power of attorney. If you choose to have separate individuals serve as health care power of attorney and financial power of attorney over you it is important that the agents are able to effectively work together and cooperate regarding your care, if not this will cause you problems.

Wisconsin power of attorney

I am an agent of a power of attorney in the state of Wisconsin what are my responsibilities?

When you agree to act as a agent under a Durable Power of Attorney you act as a fiduciary to the principal this means you have a legal duty to act in the highest good faith for the principal’s benefit.

As the agent you should read through the entire power of attorney documents and take notes on what the principal has given you the power to do. If you have any questions you may speak to the principal regarding any of the terms or conditions of the power of attorney form if the principal is not incapacitated. If the principal is incapacitated you should consult with an attorney regarding what your rights and duties are under the power of attorney documents.

You will need to create a complete inventory of the principals' assets; this is so that you can manage all of the assets and keep track of all the assets. A brokerage firm is where agents can utilize depositing the principal's securities for safekeeping, As the agent you are responsible for keeping all of the principal’s assets safe you can face personal liability in negligence for failing to keep assets safe by selecting an improper failing brokerage house. You can also face personal liability as the agent for improperly managing the principals' assets.  

Bill paying and managing bank accounts as the principal to the power of attorney in Wisconsin

As the agent if you are responsible for paying the principals bills you should bring copies of the power of attorney documents to the bank, to get your signature recognized by the bank. You can set up the checking account in the principal's name but placing your name as power of attorney. When the checks are ready to be printed off you can write out the checks by signing and endorsing your name at the bottom of the check.  

Example: John Doe Power of Attorney or P.O.A.

What records should I keep as the agent to the principal of the power of attorney?

You should keep an accurate record of all of the principal’s accounts which you have the power of attorney over acting as the agent. These checking, savings, and investment accounts need to have accurate records kept, as the principal you are acting for the principal’s benefit so you should be careful and keep daily records of what you do with all of the principal's property.

The records should contain the following information:

  • Records pertaining to the principal’s income, the amount of money you receive as the agent acting for the principal, it is important to never comingle or put your money with the principal's money, keep your money separate and a apart from the principal's money.
  • Investment records.
  • Purchases of real property or personal property.

As the agent of the principal can I reimburse myself for things that I pay for with my own money on behalf of the principal in Wisconsin?

As an agent you may reimburse yourself for out-of-pocket expenses unless the power of attorney strictly prohibits you reimbursing yourself for expenses you paid for you may reimburse yourself. Be sure to keep records and receipts of any out of pocket and expenses that you paid for on behalf of the principal.

As the agent of the principal can I pay myself for fees for my services I preform on behalf of the principal in Wisconsin?

As the agent of the principal under the power of attorney you cannot or should not pay yourself for services if the power of Attorney documents were created before 9/1/2010, unless the power of attorney documents expressly allows you as the agent to receive compensation. If the power of attorney document was created after 9/1/2010 you may pay yourself “reasonable compensation” for your services as the agent acting for the principal’s benefit under the power of attorney documents. If the power of attorney documents state that you cannot receive compensation then you may not receive compensation for your services. You are bound as the agent by the terms and conditions of the power of attorney documents so make sure that you follow the terms of the power of attorney documents strictly.

What is a “reasonable fee” to pay myself as the agent acting under the power of attorney for the principal’s benefit?

If the principal is still competent and of sound mind able to make his or her own decisions you should discuss the terms and conditions of the fee and what is a reasonable payment for acting as the principal’s agent under the power of attorney. If the principal is already incompetent then you should consider the following factors in determining what is a “reasonable fee” under the power of attorney documents:

  • Any reasonable fee estimate that you have already established with the principal
  • Any estimate of a reasonable fee that you gave to the principal in the past
  • The time you spent in carrying out your duties as the principal’s agent
  • The amount of time, resources, risk, and responsibilities you have undertaken as a result of becoming the principal’s agent
  • The customary fees for the services you provided to the agent acting under the power of attorney
  • Any unique skills you have used as the agent acting for the principal's benefit

You have to remember that any income you receive as the agent acting for the principal’s benefit is reportable as gross income that you must report on your tax return. You are not required to take a fee even if you are otherwise entitled to a fee acting as the agent for the principal.

If there is an issue regarding the fee that you have taken a court in Wisconsin will decide what fair compensation will be for you acting as a agent for the principal. The court will look at all of the facts and circumstances to come to a decision on what is a fair and reasonable fee. One last note about agent’s fees for providing services to the principal is that the agent should make an accurate account in writing of the amount of time spent and how much they are paying themselves for their services rendered to the principal.

What is a living Will in the state of Wisconsin?

In the state of Wisconsin, a living will be a legal document that is not a part of your will. A living will allow you to state your wishes regarding life-prolonging medical treatment and whether or not you would like to have such treatment in the event that you become terminally ill. A living gives you the option to declare that you want to terminate life sustaining procedures or non-oral ingested water and food if your health condition is in a terminally ill condition that you are near death and or in a vegetative state.

A living will come into effect when you become incapacitated and there is no hope for your recovery. The agent in your durable power of attorney can make these decisions on your behalf if you convey the power to them by the power of attorney for health care documents.  

In the event that you have a living will and a durable power of attorney for healthcare and they are at odds the document that was created sooner in time governs.  

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