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.
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.
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.
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.
Beneficiary designations are an efficient and effective way to transfer your inheritance to your loved ones without them having to go through a costly and lengthy probate. In many cases, it is relatively simple.
As an example, let’s imagine our client, Sue, is a widow with two adult children. Sue wants them to inherit her estate in equal shares. She names her son and daughter each as a 50% beneficiary on her:
Money Market accounts
Certificate of deposits (CDs)
After Sue passes, her children complete a request to the bank for the distribution and submits the request with a copy of her death certificate. Both children receive their 50% share of the Money Market, CDs, and savings account within weeks.
Although this process can work well, it is risky to have beneficiary designations serve as your only means of estate planning. You should always couple this with a Will or a Trust. This is because there is potential for beneficiary designations to fail, resulting in your estate plan not meeting your goals. Two of the most common ways beneficiary designations fail are: (1) you are mistaken in who you believe you named as a beneficiary; and, (2) the person you named dies before you.
The first problem has an easy fix
You can contact each of the financial institutions that hold your assets and ask them to mail you a document confirming who you have named. Usually this request can be made by phone. You may also be able to log in to an account online and obtain this information electronically.
Let’s assume Sue is recently a widow and thought she and her late husband had named their two children as contingent beneficiaries. Following her attorney’s advice, she calls her bank and discovers that she, in fact, has no beneficiaries named. They mail her a form to name her children. She completes it and brings it into her local branch. First problem solved.
The second problem can be more complicated
Each financial institution (your bank, credit union, etc.) has their own policy on what happens if your named beneficiary predeceases you. Common ways financial institutions address predeceased beneficiaries are that their share passes instead:
To the other people you named who survive you; or,
To your estate – resulting in the need for a probate.
In addition, although some financial institutions allow you to name contingent beneficiaries, not all financial institutions treat contingencies the same. The two common ways contingent beneficiaries are treated by financial institutions include:
Turning back to Sue: now assume Sue’s son tragically predeceases her. After Sue passes, her daughter contacts the bank and is told that under their policy, because a named beneficiary predeceased Sue, his share must be paid out to Sue’s estate. As a result her daughter inherits her half outside of probate, but the other half must now go through the lengthy and costly probate process. Because Sue’s will divides her estate assets between her son and daughter, her daughter will also inherit half of the probate assets. The other half will go to her son’s children. This was not what Sue wanted. She intended for her son’s children to inherit his full half of the estate assets.
As you can see, some of the policies of the financial institutions may align with your estate planning goals. But there may also be unintended consequences that significantly alter your plan. The only way to know how each of your financial institutions will handle a predeceased designee, however, is to contact them and ask them to provide their policy on contingent and/or predeceased beneficiaries. It is essential to with an estate planning professional to ensure that your beneficiary designations compliment your estate planning goals.
Johnson Bank – 6 Estate Planning Steps to Take Now
“You must live in the present, launch yourself on every wave, find your eternity in each moment. Fools stand on their island of opportunities and look toward another land. There is no other land; there is no other life but this.”
Henry David Thoreau
A little earlier this summer, we took our kids to Door County for the weekend with a group of friends. The pilgrimage to Door County seems to be a standard for many families. And this is for good reason! It is beautiful, restful, and there is some kind of magic that seems to always happen there that rejuvenates you and allows you to reconnect with your loved ones.
During this year’s trip, we took our kids — 7, 8, and 10 — cliff jumping at the Sand Dunes State Park. So we literally got in the car and drove about an hour to tell our children to jump off a cliff. It was my first time and theirs. If you’ve never been, please know: that last step right before your first jump is utterly terrifying. But the plunge into the water is exhilarating.
In my law
practice, I help people plan for their death and ensure their assets are
properly distributed to their loved ones after they pass. We walk a difficult walk alongside many. We get to know our clients and their families
as they struggle through some pretty tough times.
Given my day job,
it’s probably not surprising that as I stood at the top of the cliff before
taking my first plunge, I paused to reflect and was comforted knowing my family
would be OK because my affairs were in order.
You know, if I did not survive when I defied my mother’s advice and
actually followed my friends and jumped off that cliff.
Holding the hands of my daughters, we counted to 3. And then we jumped, continuing to hold hands as we leapt off sturdy ground and launched ourselves through the humid summer air into the frigid Lake Michigan waters. As I resurfaced to the sounds of their shrieks of laughter and pure joy, I absolutely found “my eternity in [that] moment.” We have all had those moments. And may we have many, many more.
Most people put off estate planning because we don’t want to think about or talk about our death. It does no good to live in fear of the inevitable. I was reminded of this quite clearly as I prepared to jump of that cliff. In knowing your affairs are in order truly gives you peace. I am not ready to die. I do not want to die any time soon. Yet, we can’t control when that will happen. (Although my mom would say, choosing not to jump off that cliff makes it less likely to happen that day.)
But you can make sure everything is in order so that you can be confident in taking (calculated & safe) opportunities to “live in the present, launch yourself on every wave, [and] find your eternity in each moment.”
My Facebook and Instagram feed is filled with excited posts about friends’ children’s graduations and their decisions about which colleges they will be attending.
This is certainly an exciting time of the year. So much effort has gone into preparing for this moment!
At the risk of spoiling this celebratory time, however, I recommend you consider the following before they leave your nest:
What happens if your now-adult child experiences a medical emergency?
Why should you think about your child experiencing a medical emergency before she or he heads to college? Imagine receiving a call from your child’s college roommate that your child was in an accident and rushed to the hospital. Then imagine you call the hospital and they tell you that they have no legal authority to share any information with you about your child’s condition. And you have no ability to weigh in on the medical decisions.
“The risk is real. Accidents are the leading cause of death for young adults. A quarter-million Americans between 18 and 25 are hospitalized with nonlethal injuries each year.”
Many do not know that, in Wisconsin, once your child turns 18 you can no longer be involved in his or her medical decisions without your child’s express permission. What happens if your child is unconscious or otherwise unable to grant this permission following an accident or illness? Without planning ahead, you have to have a hearing in court to obtain a guardianship.
No person should be spending time in law offices and courtrooms while their child suffers in a hospital. You belong at your child’s side.
The resolution is easier than you think
With a Health Care Power of Attorney document, your adult child can designate you (or another adult) as his or her Health Care Agent to receive information and assist with decisions if he or she is not able to do so.
While you are considering this power of attorney, also consider discussing who your child wants to help with your child’s finances. A Power of Attorney for Finances and Property allows your child to name someone to access financial records and make decisions about your child’s financial affairs if they are unable to do so.
During these festive months before you send your child off to college, I encourage you to have a conversation with them about who they want to help them in a medical emergency. It only takes a moment. And then schedule an appointment to meet with an attorney to ensure your child is covered before he or she leaves for college.
Women control more private wealth than ever before. According to the Boston Consulting Group, in 2010, women controlled approximately $34 Trillion of the private wealth. By 2020, we are expected to control $72 Trillion of the private wealth, which represents a full 1/3 of all private wealth.
How is wealth shifting to women?
Women are increasingly business owners, entrepreneurs, primary or sole breadwinners, and are likely be the surviving matriarchs of our families:
There are approximately 10.6 Million women-owned businesses in the
United States – and women are responsible for 70% of all new business startups
in the United States.
In families that have a husband and wife, 40% of wives now make
more than their husbands.
Two out of three women over 75 are single – many due to the death
of spouse, as women frequently outlive their husbands.
The Great Wealth Transfer is coming
In the next 25 years, it is anticipated that 45 Million families in the U.S. will transfer 68 Trillion from the Baby Boomer generation to the next generations. As a result of women living longer, most of the private wealth that changes hands in the coming decades is likely to go to women.
Yet, the wealth management industry has historically focused on
male clients. Perhaps that is why many
women do not engage in financial planning or wealth management. Interestingly, however, of women who
increased their involvement in their financial affairs, 90% reported an
increase in their quality of life. It is empowering to take control over
your finances. Seek out one who is a good fit for you.
Estate planning lawyers have similarly catered to males. Not surprisingly, studies show that 70% of widows
change their estate planning attorney after the death of their husband. I see this frequently in my estate planning
practice with many widows choosing to move their business to my firm. Often because they want to work with a woman-owned
firm. Just as frequently, it is because
we treat them with dignity and do not assume they lack sophistication simply
because they are women.
The shift in wealth is in process.
From one generation to the next.
And women stand to benefit greatly over the next few decades. For women, having a plan to manage our wealth
and to protect our legacy is critically important.
of protecting our legacy is ensuring that our money supports the people we love
and the causes we are passionate about.
Once you have hired that wealth management or financial planning
professional, you can work with them to see how best to grow and preserve
wealth for your children and how to best support the charities that align with
your values. Then turn to your estate planning
lawyer to help you make sure that your wealth transfers seamlessly to the next
generation and that the charities you currently support are not forgotten.
Blog Post: Leveling the Playing Field by: Boston Consulting Group