What! No Will or Trust? Wisconsin Rule for Succession

For some, the economy is trending positively while for others, reform is in the air.  But withstanding the climatic polar vortex (an appropriate metaphor for the pundits’ views on the economy, Fed policy, geopolitical relationships, and even tax law), all can probably agree that the only constant today is change, and ‘one day at a time’ with a keen eye on consequences is the best way to maintain balance.

CHANGE IN WISCONSIN LAW.  First, among other changes in recently passed and proposed legislation are substantially modified Wisconsin’s trust laws.  These may affect your trust provisions to some extent worthy of revisiting with your legal and tax advisors.  Second, Wisconsin’s lemon law is less strict now than it was before, and third, an apology made by a health care provider is not admissible into evidence at trial or other hearing.  There is no longer strict liability for a doctor who incorrectly diagnoses a patient’s condition…and much more!

CHANGE IN THE FEDERAL GIFT AND ESTATE TAX CODE AMOUNTS.  The 2014 federal annual gift tax exclusion has been increased to $14,000 for each recipient.  The estate and gift tax exemption is now $5,250,000.  Therefore, the vast majority of people will not need an elaborate tax plan to secure and distribute assets upon one’s death, including a marriage exemption that is now double that amount.  The federal portability election softens the $10,500,000 even more.

CONTINUED NEED FOR PERSONAL PLANNING.  In your personal estate planning, whether will or trust, you still should (1) appoint your Personal Representative [executor], Trustee, (2) clarify beneficiaries, (3) confirm your gifts to successive beneficiaries, (4) nominate guardians for minor children, (5) set out at what ages children will receive even a percentage of their estate, and (6) set out rules for your trustee to administer assets for minor children, like smart phones, tablets, laptops, computers, education, living expenses, and cars.  Additional legal instruments include preparation of an Asset Power of Attorney (APoA),  Living Will, Health Care Power of Attorney (HCPOoA), a more detailed Addendum to your HCPOA, possibly a religious addendum to your HCPoA, a HIPAA Release for important medical information, and a Guardian Release [for example, from parents to grandparents or a babysitter for medical purposes].   State forms are available for some of these, and our website (http://www.AttroneyBarry.com) offers on-line locations to download and print out the forms for Living Wills and Health Care Powers of Attorney.  However, use these with caution, even as the Asset Power of Attorney form may not be as complete for you as one specifically drafted to include necessary and relevant provisions you. For example, the APoA does not include any specific real estate provisions. We can help navigate and refine these to address your specific needs.

WISCONSIN RULES FOR SUCCESSION IN THE EVENT THERE IS NO WILL OR TRUST.  Under Wisconsin law, if there is no Will or Trust, then all of the decedent’s assets pass to his/her spouse or legal domestic partner; and if all children of the decedent are a shared, provisional concern under the law for a survivor’s spouse or legal domestic partner, then that spouse or legal domestic partner will receive the assets.

However, there are limitations on the amount of decedent’s property which may pass to the person’s spouse or legal domestic partner under certain conditions – the exceptions are the decedent’s interests in marital property or property held with the surviving spouse or surviving domestic partner as tenants in common:

  1. If there is no surviving spouse or surviving domestic partner, then the person’s children receive the assets by right of representation [or, as stated in the statutes: “to the issue, per stirpes”].
  2. If there is no surviving spouse, surviving domestic partner, issue, then to the deceased’s parent; and if no parents, then to the deceased’s brothers and sisters; and then to the issue of any deceased brother or sister “per stirpes”.   If none of the above, then the law continues by percentages to maternal and paternal grandparents and their children, grandchildren, etc.  [See the law for detail.]
  3. If an heir to an estate kills the decedent, then specific rules govern what, if any amount, that the person can receive.  [We tried a case before this law was passed, and our client, who acted in self-defense, received the insurance proceeds.]
  4. Finally, if there are no heirs of the decedent then the person’s estate escheats to the state to be added to the capital of the school fund.

The key element to proper distribution and care for loved ones is that a person can change receivers of one’s assets upon death – with few exceptions, especially those involving marriage or legal domestic partnership.  The importance of a Will or Trust cannot be over-emphasized.

PERIODIC REVIEW.  One should review one’s estate plan at least every six (6) to twelve (12) years, and with greater frequency if one holds substantial investments, is an established entrepreneur, or is subject to other special conditions.  We can review and discuss your existing estate plan, draft a new one, or provide sagacious recommendations for a more detailed Addendum to your HCPoA, possibly a religious addendum to your HCPoA, or a HIPAA Release of considerable value to your family members, care providers and healthcare attorney-in-fact. Just give Laura a call to arrange an appointment.

CONSIDER A HIPAA RELEASE TODAY.  Increasing cases of restricting information about a patient is leading to unnecessary confrontations between healthcare providers and trusted appointees of the patient.  In the event that your healthcare attorney-in-fact requires information about you, federal privacy laws (like HIPAA and HITECH) may prevent full information to be given to your trusted representative.  Please contact our office immediately, and Laura will send you the form at no charge.

CONSIDER A POWER OF ATTORNEY DELEGATING PARENTAL POWER TO GRANDPARENTS AND / OR A BABYSITTER.  If you are a parent, you may want to complete and sign a Power of Attorney Delegating Parental Power for medical purposes in the event that a medical emergency occurs while your children are in the temporary custody of their grandparents, babysitter, or other adult.  Contact our office, and Laura will send you the form at no charge.

UNFORTUNATELY,   THIS MAY BE YOUR FINAL NEWSNOTES FROM ATTORNEY BARRY SZYMANSKI UNLESS YOU CONTACT US TO CONTINUE.  Because of the increase in the cost of postage [on January 26, 2014, a 1st Class U.S. Postage Stamp will cost $.49] and since the size of our mailing list continues to grow, we will have to forward future NewsNotes by email.  We will make exceptions for current Clients and anyone who specifically requests snail-mailing.  For that reason what Laura needs from you is:

Your e-Mail Address
Your Name
Your Phone Number and Mailing Address including Zip

As a private Wisconsin attorney, I represent and provide legal advice to individuals, businesses and professionals throughout the State.  As your lawyer, I can continue to assist you in many matters including:

  • Estate Planning: Probate, Wills and Trusts
  • Consulting: Business and Personal
  • Organizational and Business Law: Organization of Limited Liability Companies, Operating Agreements, Articles of Incorporation, Bylaws, and Annual Maintenance,
  • Not-for-Profit and Charitable Organizations and Foundations: Incorporation, Bylaws, Operating Agreements, and Conflict of Interest Policy Statements
  • Employment Law: Management Employment Issues, and Reviewing and Drafting Policies and Procedures
  • Contracts: Review and Drafting of Specific Agreements

I am available as an arbitrator and mediator in disputes.  I also serve as a public relations spokesperson for individuals, businesses and professionals.

As you may or may not be aware, I have been associated as a member of counsel with the distinguished law firm of Schober, Schober & Mitchell, S.C. for many years.  Recognized by the Business Journal as one of Milwaukee’s top 30 law firms, our relationship benefits our clients in many ways, including that our files are integrated with those of the law firm (in the event of my untimely demise), and back-up attorneys are ready to continue legal services without interruption.  Of course, my trusted paralegal of nearly three decades, Laura Ordonez, ensures continuity of legal care that our clients have come to appreciate since 1993.

I want to add that Schober Schober & Mitchell, S.C. includes these areas of practice to better serve all of your legal needs:

  • Family and Divorce Law
  • Complex and Extensive Litigation
  • Real Estate
  • Tax Law
  • Municipal Law
  • Personal Injury, and
  • General Practice

Do not hesitate to contact Laura or me when you have questions or pending needs, and we would be pleased if you were to consider and call upon the Schober firm to represent you or your friends in future matters.  However, in this Post-911, security conscious age, please be mindful that e-mail and other forms of electronic and printed communication are not secure and are routinely scanned and stored by service providers.  Ensure confidentiality on all legal matters by meeting in-person.

We offer several convenient locations to meet with you, including:

933 N. Mayfair Road in Wauwatosa
2835 S. Moorland Road in New Berlin
1227 Corporate Center Drive in Oconomowoc

For a map to help you choose the office location of your choice, as well as the resources available on my web site, please visit: www.AttorneyBarry.com.

Sincerely yours,

©2014 Barry W. Szymanski.  All Rights Reserved.  Not to be construed as legal or tax advice.

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