Articles Posted in Wills

What happens if you have an accident or an illness whereby you are unable to handle your legal and financial affairs?  Many people incorrectly believe their spouse is legally able to handle their affairs. Similarly, a parent has no legal authority to handle the affairs of a child, once the child attains the age of majority – eighteen years.

Without a power of attorney, you would have to apply to a court to be named a legal guardian.  These proceedings are expensive, time-consuming and fraught with peril.  The judge has no obligation to name the spouse or parent as legal guardian and may appoint a stranger.  For example, the judge may feel that the spouse or parent has a conflict in that they are the beneficiary of the incapacitated person’s assets, or the judge may decide that someone else has more knowledge and experience in handling such matters.

Who should you choose as your “agent”?  In our experience, the vast majority of powers of attorney name the spouse first and one or more of the children second.  While on its face this seems reasonable, experience has shown it may not be a good idea.  We often need to use the power of attorney when the client is quite elderly and infirm.  Often, so is the spouse at that time.  Son or daughter wants to step in and help out with bill paying, etc. only to find they are unable to use the power of attorney for dad unless they can prove that mom can’t.

Many people want to avoid involving children in conversations about trusts. This article reviews some ideas that are helpful to consider when people decide whether to establish a quiet (or “silent”) trust or a trust that allows keeping the trust’s existence or details about the trust from beneficiaries as well as for the extent of time that the trust will remain quiet. 

Research reveals that approximately 70% of wealth transfers do not operate properly by the third generation. Not operating properly in this context involves the receiving generation losing control of assets in the trust. Routinely, this is not due to inadequate wealth planning or unwise investing, but instead to an absence of trust, transparency, and lack of planning. Before considering quiet trusts, it’s a good idea to consider the wider picture of family governance as well as preparing children for the assets that they will one day receive. Instead of considering quiet trusts as an alternative to wills, you should also consider involving your beneficiaries directly in discussions about the trust once they reach the appropriate age. What constitutes an appropriate age is influenced by the structure of a family, but in many cases is earlier than a person thinks.

How Wealth Is Transferred

After a loved one passes away and you learn about that person’s estate plan for the first time, it’s common to encounter various emotions as you respond to the terms of the plan including shock, sadness, or even anger. Based on the estate plan’s appointments, beneficiaries, or other times, you might be left wondering if you will be able to raise any type of claim to challenge the terms of the estate plan. This article reviews some of the basics that you will need to follow if you plan on raising a strategy based on either undue influence or incapacity.

# 1 – Not Everyone Can Challenge a Will

Beneficiaries do not acquire protected interests in a person’s property until after that person passes away. Often, a person cannot attack a will until after that person’s death. This is because the person who creates the estate plan can theoretically alter the terms of an estate plan any time before the creator passes away. If a person is interested in challenging a Durable Power of Attorney or Health Care Proxy, however, a person can challenge these documents during a person’s lifetime. No restriction exists regarding who can challenge a person’s will. Often, one or more family members of the person who created the estate plan can challenge the document’s terms.

Imagine you’ve finally met with your attorney to establish an estate plan and are now considering whether to establish a trust. Or a situation where you already have an estate plan that includes a revocable trust. In today’s world of estate planning, revocable trusts have proven to be a common but effective tool for achieving a person’s estate planning goals. This article reviews some of the important details that you should consider about the reality of revocable trusts.

# 1 – Revocable Trusts Are the Same as Revocable Living Trusts

A person can create a revocable trust during their life and maintain the power to revise the trust at any time. Revocable trusts are referred to by various names including a living trust, a revocable living trust, and an inter vivos trust. The terms of a trust are substantially more important than what a trust is called. The critical aspect that distinguishes revocable trusts from other kinds of trusts is the authority to either amend or revoke the terms of the trust. 

The Wisconsin Court of Appeals recently saw the case of Austin v. Roesler and Campbell, which provides some valuable reminders about what to do (and not do) while estate planning. 

The Facts Behind the Case

The case involved a woman who executed her will in 1977, which directed that following the woman’s death the entirety of her property is given to her husband. The will also contains provisions that direct the distribution of assets in case the woman’s husband predeceased her. In this situation, the woman stated that all of her property be transferred to her children. In case any of the woman’s children pass away before her, the woman’s will states that the assets should go to the surviving heirs. 

When considering whether to dispute a person’s will, you should review what factors exist that might suggest a successful basis for challenging the will. While these are an almost unlimited number of factors that exist, some particularly common issues arise concerning wills and resulting challenges.

# 1 – Last-Minute Changes

One of the most commonly encountered situations is when a deceased person executed a will close to the end of life that substantially alters their estate plans. When a will is drafted, an individual who wants to challenge the document should inspect several things to decide whether the document is valid. For estate planning documents created near the end of a person’s life, a detailed analysis should be made regarding whether the person had the adequate mental capacity to execute the document. 

The South Dakota Supreme Court recently reversed a circuit court’s order denying a petition pursuing appointment of a special administrator to seek a wrongful death claim for a deceased man’s estate. The Supreme Court held that the circuit court abused its discretion in failing to address certain discovery motions before deciding a special administrator petition.

After the man in question passed away, the circuit court decided that the deceased man’s surviving wife should function as his estate’s personal representative. The man’s children then petitioned for appointment of a special administrator to seek a wrongful death claim for the deceased man’s estate and later served discovery requests on the surviving wife pursuing information related to the petition. The court then denied the special administrator petition and found that the discovery issues were moot.

The Supreme Court reversed the circuit court’s decision and held that the circuit court gave the man’s children the chance to develop and later present evidence connected to their petition. 

The 2020s have been filled with tension. First, in 2020, the Covid-19 pandemic emerged. Then, race tensions hit an all-time high following the death of George Floyd and several others. Now, the invasion of Ukraine has left many people in more difficult situations than ever before. All of these events are enough to make even the calmest person uneasy.

The most seasoned estate planning professionals are used to addressing two major sources of uneasiness with clients: death and taxation. Planning for these certain events will help to reduce the uneasiness that a person feels. While it’s impossible to control the future and the state of the world, people can engage in thorough estate planning and be fully prepared for any complications that might happen and impact their estate plans.

Estate planning frequently attempts to pass or minimize risk. Some of the most helpful risk-avoiding or risk-shifting techniques that people utilize in an estate planning environment include:

As the country enters a third year of living in a pandemic, estate planning is seeing an increase in millennials who are surpassing the baby boomer generation as the generation who performs the most caregiving for both children and aging parents. 

Millennials are creating their own families, while simultaneously caring for their aging parents during a pandemic. This, in turn, is leading more caregivers to plan for the future. Even though millennials are taking responsibility for writing wills and creating trusts to establish families’ financial status, most adults in the United States lack an estate plan. Hopefully, by making digital estate planning as easy as possible, more people will create estate plans that achieve their wishes.

Key Findings from the Study

Considering that someday you will no longer be alive is an unpleasant thought. You might be frightened of the unknown, particularly when it involves issues of what will happen to your loved ones. Even though you will no longer be around to play a role in managing your estate, you do have an input in what happens to your estate after you pass away. This article reviews some of the helpful things that you can do to protect your money after you pass away.

A vital part of estate planning is creating a will, which is a type of legally-binding document that articulates your wishes for what should happen after you pass away including who you would like to manage your estate and how you want your assets to be divided. Wills can also include instructions regarding the care of any dependent or pets that you might have.

A poll conducted in 2021 revealed that less than half of the adults in the United States have a will. The results of this study are similar to other polls conducted as early as the 1990s. Even though it can be challenging to consider that you will someday pass away and to place instructions regarding how your family should manage your assets, doing this can be critical to making sure that your assets, as well as your loved ones, remain protected after you pass away. 

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