Last year, back when things were the old normal and we had Christmas pageants and were able to gather in person, our kids were proud to sing with the children’s choir. Driving home from church, one asked: “Who is Aunt Chelsea?” I racked my brain. We don’t have any family members named Chelsea. I asked if she meant our friend Chelsea?
No. She wanted to know more about Aunt Chelsea who let Mary and Joseph stay with her that first Christmas. “You know. Gloria, in Aunt Chelsea’s Stable.” They had sung their hearts out to the hymn “Gloria” all the while thinking that Aunt Chelsea was a pretty kind person.
This year is hard. We are separated from so many loved ones. We can’t gather like we use to.
Be safe. Be healthy. Remember all the Aunt Chelsea’s in our lives.
Wishing you and your loved ones peace and happiness this Christmas. We all look forward to meeting in person in 2021.
“Blessed is the season which engages the whole world in a conspiracy of love.”
I see the impact of problematic in-laws on a weekly basis.
To be clear, I struck gold with my own in-laws. They are extremely supportive and loving. I don’t think I’m going out on a limb to say the feelings are mutual. One of the hardest things about social distancing to prevent the spread of COVID-19 is not being able to spend time together in person. Thanksgiving and the rest of this holiday season are going to be particularly difficult.
But not everyone has a great relationship with their in-laws. In fact, based on what we see in our office, it is not uncommon for families to have at least one problematic in-law. Someone who is just out of sync with the rest of the family.
Why does a problematic in-law impact your estate planing?
If you do not yet have an estate plan and you do not have a surviving spouse, Wisconsin law designates your children as the “natural objects of your bounty.” That means your child or children will inherit your estate. When you have family harmony, this makes sense. In fact, for those who have the foresight to make an estate plan, most leave their estate to their children (if there is no surviving spouse). Many of us sacrifice a bit throughout our lifetimes with the hope of passing some inheritance to our children. It is the natural order of things.
Some things are out of our control
And then your child goes off and marries someone you distain. Not someone who is a little annoying. Someone who is simply awful, loathsome, and repulsive. If your child inherits your estate, what happens if she predeceases you? Allows his spouse to consume the inheritance? What if she gets divorced?
Part of growing up is allowing your child to make their own choices. But our choices have consequences. There are a few techniques you can use in your estate plan to address the problematic in-law. This is not about teaching your child a lesson. It is about protecting the inheritance.
The most extreme option is to disinherit your child. The Wisconsin Supreme Court recently reaffirmed that one of your most important rights is the power to dispose of your property as you choose and, therefore, parents have no duty to leave their estate to their children. Nonetheless, disinheriting a child can have significant emotional and financial consequences for your loved ones. It can be emotionally painful for the child. It can also deny your child funds that could provide additional financial stability. Her siblings may feel guilty for inheriting their sibling’s share of the estate. And it can lead to a court challenge and protracted litigation over the inheritance.
You have options
In the alternative, you can work with your lawyer to decrease the likelihood that the problematic in-law receives anything from your estate. The most common approach is to hold the funds in a trust for your child’s benefit and restrict the spouse’s access to the funds. Then, if your child gets divorced, the assets are protected and preserved for your child. And upon your child’s death, the funds can be directed to your child’s children (your grandchildren) or divided among your surviving children and/or charities.
You can also skip a generation and gift the funds to your child’s children. This is actually a common approach when a child predeceases – even when you like the in-law. You can accomplish this through outright gifts to your grandchildren or holding the inheritance in a trust for their benefit until they are old enough to manage the funds responsibly.
Your estate plan, or lack thereof, cannot be corrected after you die. If you find yourself struggling with your child’s choice of spouse, you would benefit from a conversation with a lawyer who specializes in estate planning. There may be a way to avoid or minimize conflict with a problematic in-law and maximize your child’s access to the inheritance.
When you love someone with dementia, you lose the same person twice.
As defined by the Mayo Clinic, Dementia is a group of symptoms that affect memory, thinking, and social abilities. Several different diseases cause dementia Alzheimer’s is one of the most common and well-known forms of dementia.
At Rebecca Mason Law, we counsel many clients through the heartbreaking process of losing a loved one to dementia. It is one of the most difficult things a family can experience.
The early stages are some of the hardest as you watch your loved one’s memory fade in and out. In the beginning, many struggle with knowing their memory is fading and that there is nothing they can do to stop it. Some become belligerent and violent. While others withdraw.
As dementia progresses, the brain slowly dies. Many come to a point where they cannot recognize their loved ones.
My grandma suffered from dementia. Near the end of her life, she had no idea who I was — but she could recite word for word the commencement speech she gave to her 8th grade class nearly 80 years prior. She would ask me why her grandchildren never visited her.
It is hard. There is no fix and no easy way to get through Dementia. You grieve when they forget who you are. You grieve every time they don’t remember your face, every time you have to reintroduce yourself, every time have a conversation with your loved one about yourself as if you are not you. And again when they physically die.
For the first time in 15yrs, we are not celebrating our independence by walking in the Racine 4th of July parade. We are all sad about this and it underscores the uncertainty of 2020.
As we consider Independence Day 2020, a lesson we can learn from this year is that the future is uncertain. How do we protect ourselves, our family, and our businesses from a sudden loss of autonomy? This year in particular, many of us have had to face this type of concern head on. Is there a way to be more prepared? A durable power of attorney for can go a long way to help.
The durable power of attorney allows you to name someone who can make decisions for you if are unable. With the durable power of attorney for finances & property, your designated decision maker will have the authority to act on matters related to your finances and property on your behalf. For example, your agent will be able to pay your bills, manage your income and handle your affairs in the way you would want if you could not act independently. For your health care power of attorney, your agent has the authority to work with your medical team to make decisions about your health care.
Through your estate plan, your chosen decision maker will be able to fulfill your wishes if you cannot act for yourself.
What makes a power of attorney durable?
When you are working with Rebecca Mason to create your estate plan, is durability important? The durability provision means that it is able to be used in the event of your incapacity. This is a critical aspect to your estate plan. While a power of attorney is a vital tool in all respects, you will need it most in the event you cannot make your own decisions.
Power of attorney documents are just one facet of your comprehensive Wisconsin estate plan.
Father’s day, like many holidays, can invoke strong emotion. We work with many families who have unresolved issues when a loved one dies. It can be very difficult for loved ones to find closure in these situations.
Some unresolved issues are so deep and hurtful that they cannot be resolved.
A few years ago, my father posted on Facebook that he tripped and fell while on a walk and ended up having to go to the ER. Although we were Facebook friends, we had not talked in years. He was living in Washington DC and remarried – I had only met his wife once. He had never met his grandchildren.
As I read my father’s post, I thought about the families I counseled in my law firm conference room as they struggled through the death of an estranged family member. Given that a minor fall landed him in the hospital, I worried we might not have much time left. I decided I did not want that for me and, more importantly, my children.
I reached out to him and extended an invitation. They came to Racine for a visit with us almost immediately! My kids were excited to meet them and welcomed them with open arms. Before the pandemic, they visited us here in southeast Wisconsin regularly, and we all flew out to visit them a few times.
It has been wonderful getting to know each other as adults and watching them with their grandchildren.
I know it is not always possible. But, for me, letting go of the past and accepting the present has brought me such peace and allowed me and my children to get to know two amazing people.
Happy Father’s Day, dad. And happy Father’s Day to all the dads, grandpas, and father figures out there!
Wisconsin estate planning documents need to be properly witnessed. Wisconsin law requires witnesses to be in the “conscious presence” of the person signing a will. That has been interpreted to mean that witnesses must be present with the signer. Not observe the signing remotely through video conferencing. For a document to be notarized, the person must “appear before” the notary. This, too, has been interpreted to mean that a document must be notarized in person.
Many states allow remote witnessing and notarizing of estate planning documents. However Wisconsin does not currently.
Remote witnessing and notarizations would be helpful in the midst of the COVID-19 pandemic. Many of us are being careful to limit in-person interactions. However, information shared by social media and “do it yourself” estate planning websites, can be miss-leading as states have different rules. There is a high risk that people are getting bad information about how to properly execute their estate plan. Even the local newspaper recently printed misinformation that courts will accept a will without witnesses – which just isn’t true.
It is critical to work with a legal professional in the state where you reside. A Wisconsin resident could read this AARP article or the Journal Times article pictured above and use one of these do-it-yourself legal website or a template. As a result, the documents would not be valid without an appropriate witness/notary (Even with a remote witness).
With all this in mind, The State Bar of Wisconsin’s Real Property, Probate, and Trust Law Section filed an emergency request for a temporary order that would permit remote witnessing of certain estate planning documents in light of the COVID-19 pandemic.
However, the Court declined to issue an emergency ruling.
This is disappointing, but attorneys across Wisconsin will persist.
Since the COVID-19 pandemic first appeared in Wisconsin two months ago, lawyers across the state have been working hard to make sure our clients can safely execute their estate planning documents.
Due to safety concerns for our clients, Rebecca Mason Law is meeting by phone, FaceTime, and even Zoom. We share drafts electronically. We are conducting signings curbside outside our firm – or standing by the curb outside your home and observe you while you sign from the comfort of your own front porch.
The preservation of the wealth you have built depends on a clear and strategic business plan as part of that plan you need to consider succession.
What happens to your business when you die? If you are an owner
of a private or family-owned business and have no succession plan, your
interest in your business will be subject to probate. And what happens if your business’s and your
family’s interests are not aligned?
As an alternative to probate, a well-written business succession
plan will allow you to make it clear who takes over your business and allow for
a smooth transition.
As with any estate plan, you begin with your
priorities. Is the long-term success of your business most important
to you? Or is your highest priority preserving family wealth? Are
the two mutually exclusive for your business?
Notably, even if you never created a legal
entity, there will be things that need to be handled upon your death. Even if your goal
is simply to wrap up your business and give someone the authority to collect
your accounts receivable, you want to put in place a succession plan to avoid
Your business organizational documents, such as your operating
agreement, can set forth the seamless transition to transfer your
business. How you structured your business (LLC, Partnership, Corporation)
will impact how your succession plan needs to be structured.
What succession options are available?
If you have a spouse, child, or other family member who works for
the business, you can pass your business on to them.
If you are not transitioning your business to your spouse or to the
next generation, perhaps you co-own your business with other(s) or have a
talented employee who wants to purchase the business. You can include a buy-sell agreement that
allows the remaining owner(s) (or employee) to have the right to purchase your
interest in the business from your family. This ensures your family
is fairly compensated and allows the business to continue. The sale
of your business to co-owner(s) or employee(s) will require an agreed upon
price or the ability to obtain an accurate valuation of your business.
You can also transfer ownership to someone for the sole purpose of
giving that person the authority to wrap up the business.
But you also don’t need to wait until you die.
Along with planning for the transition in the event of your death,
business succession planning can also address who takes over your business upon
your retirement. If you plan on retiring from your business, you
will need to decide ahead of time how you want your business to continue. Do you plan to remain involved in any way
after you retire? Is it important that
you receive an income stream after you retire?
You will need to decide how important is it to for your business
to remain in the family. You probably
also want to check with your family members to make sure they feel the same
If you are planning on transferring your business to a family
member when you retire, do you expect to receive fair market value for the
business? Or do you view the business as
your children’s inheritance, and therefore do you not expect them to buy into
What do you think your child expects?
As you are deciding how to proceed with transitioning your
business, it is recommended that you consult with various stakeholders. A good place to begin is with the family
members who are active in the business.
At some point, you will want to bring in the entire family, even those
not involved with the business. What
about their spouses? And your employees?
There are many options for your business. With the right business succession plan, you maintain control over the outcome and protect your legacy.
Pubs in Ireland closed two days before St. Patrick’s Day. Schools and businesses across Wisconsin, the United States, and the world are closing. Professional and college sports have been cancelled. In Wisconsin, courts are closing until at least April 30 for many types of legal actions. While in situations like the grocery store, people are trying to impose some sort of social distancing protocol.
Now is not the time to panic. But it is the time to prepare. We are facing an unprecedented situation. It is difficult to know what to do and hard not to feel at least a little scared. The Coronavirus / COVID 19 seems to be taking over the entire globe at a rapid pace.
Estate Planning While Social Distancing
of us have a hard time sitting still in times of crisis. We like to do something to make the situation
a little bit better – for ourselves and for our community.
As a lawyer who specializes in estate planning and probate, I strongly recommend the following to be better prepared while you are social distancing yourself from others.
Make sure you have a Health Care Power of Attorney that is ready to work for you.
A Health Care Power of Attorney names a person who will advocate for your medical care if you become incapacitated.
You have the right to decide the quality
of life you want. Your Health Care POA
is the best way to direct your medical care if you are incapacitated.
If you have a Health Care POA, review it
and make sure the person you name as your agent is ready, willing, and able to
be your advocate. Make sure you have a backup
named who is also ready, willing, and able.
Upload it so you can access it on your phone. Email it to your agents and your
doctors. Carry a note in your wallet
with their contact information.
If you do not already have a
Health Care Power of Attorney, I strongly recommend you contact an attorney who
specializes in this area of law and schedule a phone appointment to get the
process moving. It is always better to work
with a professional with experience in this area of law. You will end up with a better product and ensure
that it is executed correctly. I have
seen many power of attorney documents that were not properly executed – which
becomes problematic if you are incapacitated and need someone to advocate for
However, if you are not able to meet with an attorney or cannot afford one, and if are a Wisconsin resident, you can download a state form here: Wisconsin Department of Health Services. I assume many other states have their own form. In Wisconsin, your Health Care Power of Attorney needs to be witnessed by two people. The witnesses must be over 18, neither can be your health care professional and neither can be named as your agent.
Execute a Revocable Living Trust (a “Trust”).
Having a Trust and avoiding the costly delay of a court-run probate just got a whole lot more important.
As health professional instruct us to stay home as much as possible. We do not know how the court system is going to function over coming months. If you are relying on a will (or don’t have an estate plan), your loved ones will likely have significant delay in accessing their inheritance as they wait for the courts to probate your estate.
In contrast, a Trust is a private
contract between you and your loved ones.
When you pass, your Trust assets seamlessly pass to your loved ones
without the hassle of the courts. If you
lose capacity, your successor trustee can step into your shoes and manage your
financial affairs. And while you are
alive and have capacity, you retain full control over your Trust assets.
You need to work with a professional to create and fund your Trust to ensure that it is done correctly. Too often I have clients come into my office thinking everything was handled because their deceased loved one had a Trust – only to find out that the assets were never put into the Trust and we have to go to court to probate the assets.
Check your beneficiary designations.
Financial assets and property can be transferred outside of probate through beneficiary designations. You can name someone to inherit your life insurance policies, your retirement accounts, and your bank accounts. You can also name someone to inherit your home and avoid probate of a significant asset.
designations can be a good way to transfer wealth and avoid the uncertainty of
the courts, there can be significant problems with relying on beneficiary
designations. The main problem with
relying on beneficiary designations instead of a Trust is that they do not
easily accommodate contingencies if a named beneficiary dies before you and
your estate might end up in probate anyway.
Many people are mistaken about who is actually named as their beneficiary. Maybe you set up your retirement account when you first got your job and before you were married. You could be disinheriting your spouse unintentionally.
Beneficiary designations are
also difficult because the person inheriting has to know they are the
beneficiary and what company to contact to obtain the funds.
If you are relying on beneficiary designations, double check to make sure the right people are named. It usually a simple process of calling the financial institution where your funds are held and asking them. I recommend asking them to mail you a confirmation as well so that you can give a copy to your beneficiaries.
Social Distancing: At least for the time being, life has changed significantly.
While we make sure we have enough food and figure out how to exist while social distancing, we can also make sure that our estate is in order. It seems that life is about to get a lot more difficult. But you can take some action to make sure that if things get really bad, your medical wishes will be followed and your estate is kept out of probate.
As the Coronavirus has progressed, there has been an increase in the number of people contacting our office to ensure their affairs are in order. All the media attention seems to have put estate planning back on the top of their to-do lists.
There is no way to know how the coronavirus will impact us in the long-term. But it sure has become impossible to ignore. Even my 8-year-old came home from school asking about it.
There seems to be no end to the advice. Don’t shake anyone’s hand. Press the elevator button with your knuckle. Wash your hands for at least 20 seconds. Stock up 3 weeks worth of food and medicine.
But is there anything you should be doing from a legal perspective during the Coronavirus outbreak?
Yes: You should review your estate plan. But not just because of Coronavirus. Estate planning is always important. And it is frequently something that gets de-prioritized. So I am hopeful that an upside to all this media coverage will be that it drives more people to create or update an estate plan.
If you have an estate plan, review it. Make sure it still accurately reflects your wishes. Importantly, make sure that the person you designated as your Agent in your Health Care Power of Attorney is still the right person. Your Health Care Agent ensures your wishes are honored in the event you lose the ability to do so. These documents give you the final say on your health care decisions and the quality of life you want. For many, this is the most important document in your estate plan.
Similarly, make sure that the person you name as you Agent on your Financial Power of Attorney is still the right person. This agent will help you with handling your financial affairs if you lose capacity.
As part of your estate plan review, it is also important to make sure your Personal Representative or Successor Trustee is able to serve and is still the best person to help you and re-evaluate the person you name to be Guardian of your minor children. It is also helpful to review your beneficiary designations and, if you have a trust, make sure your assets are owned by your trust.
And if anyone named in your documents has predeceased you, it is time for a revision.
If you are like many and don’t yet have an estate plan, perhaps now as we consider the Coronavirus it is a good time to put it closer to the top of your to-do list.