There is a common misconception that you can simply tell a trusted friend or family member that they are the person you would like to take care of your children in the event of your death. Unfortunately, a conversation like this is not enough to ensure that your wishes will be fulfilled. Rather, you should have your decision explicitly written in a legal document. Two options are a Will or a Revocable Trust.

Using a Will to Appoint a Guardian for Your Child in the Event of Your Death:

A. Biological versus Stepparents

Appointing a guardian to take care of your minor child in the event of your death is a smart way of ensuring that your wishes are clearly communicated. However, it must be noted that Wisconsin law presumes that biological parents are the natural guardians of their children. Thus, if you are in a subsequent marriage and would instead prefer that your spouse (your child’s stepparent) be selected as a guardian in the event of your death, you should state your reasons as to why you believe your child’s biological parent should not be guardian in addition to appointing your desired guardian. Some examples of reasons for non-appointment include substance abuse, lack of contact with the child, abuse, unsafe conditions, stability, etc.

When a Will with such guardian designations is admitted to probate, there is no certainty that the court will respect your wishes and name a stepparent rather than a biological parent as guardian. However, clearly spelling out your reasons will increase the chance of the court appointing your desired guardian.

B. Children 14 and older

Another thing to consider is the age of your child. Wisconsin statute §54.15 allows children who are 14 years or older to choose their own guardian and the court will approve the appointment so long as it is in the child’s best interest. Children 14 and older can also object to a guardian that is proposed by the court or in a Will, even if that guardian is a biological parent. The child’s objection is another factor the court must consider when naming a guardian.

C. The Personal Representative’s Job over Minors:

Every Will should name a person who may act as Personal Representative (also known as Executor) of the estate. The Personal Representative’s job is essentially to collect all assets, pay all debts and taxes, and then distribute the remainder to the beneficiaries of the Will. If one of the beneficiaries of a Will is a minor, then the Personal Representative will distribute the minor’s assets to the minor’s guardian, rather than directly to the minor.

Using a Trust to Appoint a Guardian for Your Child in the Event of Your Death:

A. Age limits in a Will versus a Trust

Trusts are often drafted in conjunction with a Pour-Over Will, which is used to transfer to the Trust any forgotten property that was not originally put in Trust. Thus, a parent can appoint a guardian in a Pour-Over Will just as he or she can do in a simple Will. However, in a simple Will, the child’s guardian will cease to act once the child reaches adulthood, resulting in the child officially taking possession of the assets left to him/her in a Will at age 18. Some parents cannot imagine their 18-year-old child responsibly using such assets.

As an alternative to a simple Will, parents can choose to draft a Trust with a provision requiring the child to reach a certain age of majority before taking possession of the assets. With a Trust, the Trustee will manage the property that your child is intended to inherit until your child reaches the age of majority. The age of majority is entirely up to the parent drafting the Trust; however, many Trusts set the age of majority at 25, 30 or 35 years old.

B. Trustee management of a child’s property

A person called a Trustee, which is selected by the Parent and named in the Trust, is in charge of managing your child’s inheritance until he/she reachs the age of majority and is required to distribute the inheritance as specified in the Trust. Typically, Trusts allow the Trustee to distribute a part of the inheritance to your child for their health, education, maintenance, and support. What constitutes health, education, maintenance, and support is typically up to the Trustee’s discretion. However, the parent or Grantor of the Trust may get more specific and narrow the distribution to the child, for instance, educational distributions can be limited to a specific field or specialty or study.

Conclusion

Choosing whether to provide for your minor child in the event of your death via a Will or with a Trust is a serious decision and often requires a complete overview of your assets and goals. Meeting with an estate planning attorney to determine which option is best for you is the first step in making sure your minor children are cared for in the future. Contact Wynn at Law, LLC today to set up an appointment with an estate planning attorney who can assist you in choosing which document to draft and make sure your wishes are carried out.

Schedule a Consultation with Wynn at Law, LLC to Assist with the Will or Trust Drafting Process

Contact Wynn at Law, LLC today for a consultation at 262-725-0175 or visit our website’s contact page. Wynn at Law, LLC is based in Southern Wisconsin and has offices conveniently located in Salem, Delavan, and Lake Geneva, Wisconsin.

The post How do I make sure my child is taken care of if I die? appeared first on Wynn at Law, LLC.

Intestate Succession:

When someone who lived in the state of Wisconsin dies without an estate plan, they are said to have died “intestate” and are thus entitled to the state’s laws of intestate succession. In other words, the state decides what to do with the decedent’s property. This is why consulting an estate planning attorney is important if you would like to have a say in where your assets go after you pass.

Intestate succession is often referred to as “probate” which also refers to the distribution of the decedent’s estate. However, intestate succession refers more specifically to the pattern of distribution of the decedent’s estate to their heirs and who qualifies as an heir.

There is a common misconception that the property of those who die without a Will goes entirely to the state. This is only true in rare circumstances; Wisconsin uses this as a last resort when the state cannot identify any of the decedent’s heirs or family members. Part of the reason why this is so rare is because the state can usually identify at least one heir – even if that person is a distant cousin the decedent never met. The next paragraph outlines how Wisconsin identifies which heirs inherit.

Who receives my property and in what order do they receive it, if I die without a Will?

The pattern of intestate succession in Wisconsin starts with spouses – if you die without a Will, but you are married, then your surviving spouse receives everything. This is true even if you die with both a surviving spouse and surviving minor children, as the state presumes that your surviving spouse will use the inherited assets for the benefit of the children. This could result in an unfortunate situation in which your surviving spouse does not share the estate with your surviving children, leaving your children with no inheritance and no legal remedy.

If you pass with no surviving spouse nor surviving children, then the State of Wisconsin looks up your family tree to find your next heirs, which are your parents and/or your siblings. However, if you pass with no surviving parents nor siblings, then your estate will be distributed to your surviving grandparents. The probate process will continue along your family tree until a relative, no matter how distinct is found. Finally, if the state cannot identify any of your family members, then your entire estate will “escheat” or “go to” to the State of Wisconsin and will be added to the Wisconsin’s school fund.

Throughout this entire pattern, there are quite a few nuances. For one, the “issue” (legal term for children) of your heirs can inherit a deceased heir’s share by “right of representation.” For example, if you pass with no surviving spouse, children, or parents, but you have a surviving brother and a deceased sister who has a surviving child (this would be your niece or nephew), then your niece/nephew can inherit your sister’s share by right of representation. In this scenario, your niece/nephew  would receive half your estate and your surviving brother would receive the other half of your estate.

Other nuances to consider include: children from a previous marriage, children who have been adopted by an heir, and many other family relationship questions. The unpredictability of the intestate succession process can result in the deceased’s assets going to a family member that the decedent has not spoken to in years or may have never even met.

What is included in the probate estate:

Another nuance to intestate succession regards what property is even included in the probate estate. Probate property is all property the decedent owned solely or as a tenant in common at the time of passing. Property owned jointly is not included in the probate estate because it transfers to the surviving joint owner. Non-probate property includes any of the decedent’s assets that have a payable on death or transfer on death designation, such as life insurance, retirement accounts or bank accounts.

How does the intestate succession process start?

For the intestate succession process to begin, someone must open a probate case. To do so, it must first be decided whether an informal or a formal probate will be opened. This is a legal decision that should be made with the assistance of an attorney as the decision can depend on numerous factors. Examples of factors to consider include the size of the estate, the number of claims or creditors against the estate, the ease of contacting interested parties, and the ease of determining who the heirs are.

Schedule a Consultation with Wynn at Law, LLC to Assist with the Probate Process

Contact Wynn at Law, LLC today for a consultation at 262-725-0175 or visit our website’s contact page. Wynn at Law, LLC is based in Southern Wisconsin and has offices conveniently located in Salem, Delavan, and Lake Geneva, Wisconsin.

The post What happens in the State of Wisconsin when you die without an estate plan? appeared first on Wynn at Law, LLC.

A lot can happen between one year’s holiday celebrations and the next. Some people pass, little ones are added to the family, sometimes relationships change for the better or worse. The value of your assets could change, too – hopefully upward. Your will, trust, insurance policy beneficiaries, gifts, and ownership interests, as a result, could change as well.

Use your best resource

Everyone should consider having an experienced estate planning attorney assist them in drafting or changing these estate planning documents. For example, Wynn at Law, LLC has worked on wills and trusts for single clients and couples in all stages of life, even couples or grandparents seeking to take care of minor children.

Estate planning is a broad, sometimes intimidating term. But it’s simply about caring. You decide how your assets are to be passed on to others. So, estate planning is about generosity first and foremost. It’s also about consideration of your family’s time, as well, because you can avoid questions, fights, and even probate by clarifying your wishes. A third objective also shows your caring and forethought by minimizing state and federal taxes your heirs may face.

Why you won’t delay

Often times, people will think about the changes they will want to make in beneficiaries once they’ve been reminded by seeing everyone over the dinners and celebrations. They are the clients who make appointments for January.

But, it’s very easy to sit down with an attorney before and during the holidays because the family is gathered near. Sometimes signatures might be required. A Power of Attorney might need to be appointed or changed. Is there a better time than when loved ones are gathered together? Ensure your loved ones are taken care of in the future this holiday season.

Elena Shashkina image, used with permission

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