For the first time in 15 years, 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 Wisconsin durable power of attorney for finances & property and a power of attorney for health care 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 in the power of attorney document 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 are suddenly incapacitated and 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.
has been a year of growth for the Rebecca Mason Law firm.
Early in 2019, it became clear that the firm’s workload was too high for me to be out of the office two full days each week at the Municipal Court. After I made sure that the court had transitioned from its carbon-less paper / typewriter system to a computer system, I stepped down from serving as a local judge at the end of February.
was truly honored to have the opportunity to serve our community as its Municipal
Judge. The voters put their trust in me,
and I believe I served with integrity and treated everyone who appeared in my
court fairly. It was a difficult
it was the right decision.
Refocusing all of my professional efforts on estate planning, probates, and guardianships has allowed the firm to significantly expand our client base and provide even stronger personalized customer service.
Estate planning is on nearly everyone’s to-do list. All too often it is the first item to get de-prioritized as life happens. But failing to plan can result in leaving behind a pretty big mess for your loved ones.
In 2019 we dramatically improved efficiencies in our process.
Our office keeps the momentum going when a client takes the first step of coming to the initial consultation. Our team has been able to consistently provide to estate planning clients the first draft of their estate plan within two weeks – often in just one week – of the initial consultation, and we have improved the timing of the will signings, with nearly every client signing his or her estate plan within 30 days of our initial consultation.
This year, we also had several huge successes for our guardianship clients, and we had some interesting probates involving some pretty remarkable people. I am blessed each day to have this opportunity to walk a difficult walk with people who have lost a loved one and help ease their load.
Refocusing also allowed me to spend more time with my family. I was able to coach my daughter Eleanor’s U11 soccer team. I haven’t played since college and it was incredibly fulfilling helping the girls learn and watching them fall in love with the sport. For many, it was the first time they ever played soccer. Both of my daughters also participated in Girls on the Run, which culminates with a 5K at Miller Stadium in Milwaukee. I was able to train with the girls and ran the 5K alongside Amelia. And little Cory and I have been able to spend quality time reading the Harry Potter series together.
As 2019 comes to a close, I am filled with gratitude and peace. If I had the fortune of working with you this year, thank you. If our paths did not cross this year, please know that I am here to help and hopefully we will meet in 2020!
Thanksgiving can be a happy time to visit with your friends and family. People often take this time to reflect on what you have to be thankful for and often that is your loved ones.
It is also a perfect time to talk about your estate plan.
One of our clients started a tradition a few years back. On Thanksgiving after the meal is eaten and before too many drinks have been consumed, he sits down with the son who will eventually take over as successor trustee. He shows his son where he physically keeps his estate plan and other planning documents. Walks him through where all the family assets are held. He highlights what has changed over the previous year.
If you are fortunate enough to enjoy spending time with your family, why, you ask, would you interrupt the joy by talking about your death?
Why? Because your estate plan is a gift to them.
Take the time to think about all of your investments, real estate, and accounts. Contemplate all of your log-ins and passwords to your financials, your social media, and your digital libraries. Consider your monthly and annual expenses. Now imagine you are suddenly gone tomorrow. Would your husband or wife know what to do? Your daughter or life-long friend?
A friend was recently bemoaning the fact that her brother
left no will and a mess that she now had to clean up without any idea as to
what he wanted. She is living the
reality that your estate planning is – more than anything – a gift to your loved ones.
When you fail to organize your documents and execute your estate plan, you are leaving your loved ones in quite a predicament. We have opened probates that require us to call through every local bank and credit union trying to figure out where the deceased had accounts. We have had the surviving loved ones bring in boxes of financial documents not knowing whether their life insurance policies are still good, or whether retirement and investment accounts have been cashed out or rolled over into a different account.
Tracking down assets can be time-consuming and expensive. More importantly, you leave your loved ones
with an ever-present uncertainty. Did
they find everything? Are they wrapping
up your affairs the way you wanted?
The Holiday Season is upon us. When you gather, find a way to talk about your estate plan with your family. If you don’t have your plan yet, you may be able to get one before the holidays if you act now. It’s a good time to take the opportunity to start talking about how you want your things divided as a way to begin the process.
After a night of trick or treating, our son consumes nearly all of his Halloween candy before we make it home. If it were left up to him, he would eat the entire bucket that night.
In contrast, one of our daughters will first organize her
candy into chocolate, gummy, hard candy, etc.
She will then eat just a few pieces of her candy that night and limit
herself to one piece of candy per day to make it last as long as possible.
She certainly shows a great deal of self-control.
But at what cost?
Inevitably, as the winter holidays approach, I will throw
out a large amount of her old, now stale, Halloween candy to make room for the candy
canes, peppermint kisses, and chocolate treats.
She ends up missing out on a good portion of her Halloween candy.
Now, I am not advocating eating an entire bucket of candy in
one day. But perhaps living life to its
fullest and enjoying what we have while it’s still good isn’t the worst
And given that this is now an annual occurrence, perhaps it makes sense for her to make a plan for that excess Halloween candy and give some away while it’s still fresh.
I met with a potential client at his home who was in the end stages of a terminal illness. He was living at home with his sisters providing 24-hour care. His mental capacity was slipping. He had good days and not so good days. He wanted me to draft a will that gave his estate to his sisters and their brother and to disinherit his children as they had been estranged for decades. When I came back to his home to review his will, he was having one of his not so good days and was angry with his sisters because he didn’t want to eat his lunch and they were being pretty persistent that he needed to eat. He decided that he was going to take his money, his boat, and his truck with him and not leave anything to his family. I explained that he couldn’t take it with him when he passed. He insisted he would find a way.
Needless to say, we did not execute a will that day.
He passed a little while later without ever executing a will. His estranged children will inherit
None of us know when we are going to die. But we do know that you can’t take it with you. While we are here, we can live life to its fullest. Maybe eat a few extra pieces of Halloween candy. And if we are lucky enough have something left when we die, we can have a plan in place long before we lose the capacity to do so to make sure the transfer of wealth goes smoothly and according to our wishes.
Our own Halloween Candy – Rebecca Mason Law Resources:
In the age of Pinterest boards, YouTube videos, and political Tweets a “do it yourself” mentality pervades our society. DIY can be a good route for home decor, it’s not always the best idea for estate planning. An experienced elder law attorney can help you put together an estate plan that works for you, your beneficiaries and your assets.
DIY estate plans can have catastrophic
A client hired our elder law firm to help with the probate of his dad’s estate. Her father had remarried later in life after his kids were grown and his wife also had children from a prior marriage. His wife passed first and left everything to dad. Dad frequently discussed his intent for all their children – his and his wife’s – to inherit equal shares of his estate. Dad prepared a will using an online legal service.
The will was clear about how he wanted his estate distributed, however it was not signed in front of two witnesses. A fatal flaw for a will in Wisconsin, and one an elder law firm would probably not make. It therefore does not control the distribution of his estate’s assets. Without a will, his children are entitled to inherit everything, cutting out his wife’s children.
Online Legal Services
can Create Significant Problems.
Another client came to us after her partner passed. They had never married. Her partner created a will using an online service to leave her everything and it was correctly executed. Unfortunately, the forms were not completed correctly, with the beneficiary portion was left blank in the final version. Without being named as a beneficiary, she was not entitled to any of the estate. Instead it was distributed to estranged relatives.
Hiring an Elder Law Attorney Is Less Expensive in the Long Run
For many, the biggest draw of DIY estate planning websites is the low cost. However, a DIY estate plan can ultimately be more expensive. Many elder law attorneys charge flat fees for estate plans, whereas legal services for a probate are billed hourly. If the DIY will fails or is contested, the costs will far exceed the costs of hiring a lawyer to draft your plan originally.
Lawyers are Experts
elder law lawyers know how to handle the complicated situations that can arise in estate planning. Owning a business, marrying more than once, and having a disabled child are just a few examples of complexities in estate planning. Generic online forms are often not equipped for these issues. Working with an attorney guarantees that your loved ones will be taken care of, no matter how intricate your family tree.
State Laws Matter
Estate planning is at the intersection of several areas of law. Estate planning involves dealing with real estate, taxes, and health care, among other things. As many have found out Laws also vary widely by state, which online estate planning tools don’t always account for properly. In order to make sure that your estate plan is valid and aligns with your wishes, it’s important to work with an experienced elder law attorney in your state.
Beyond ensuring that your estate plan is valid, elder law attorneys can help you maximize the value of your estate. After learning more about the contents of your estate, your attorney can help determine exactly which documents you need and how you can avoid unnecessary taxes.
An elder law attorney can work with you to identify your goals for your estate and make them a reality.