Time on Your Hands? Your Guide to Estate Planning

By Attorney James A. Spella, Schloemer Law Firm, S.C.

What do you do after the house is clean, the garage is organized, you’ve run out of puzzles, and TV has become boring?

Our suggestion is that you consider creating or updating your estate plan. It is important.  You know it is important, but like many important projects, it gets postponed.  We say we will get to it on a “rainy day.”  Well, let’s call our current situation the “rainy day.”

Below is a listing of 16 questions which if you answered “No,” raises a red flag that you need to have an updated plan.

  1. Have you updated your planning in the last three years?
  2. Do you have a Durable Power of Attorney?
  3. Do you have a Health Care Power of Attorney/Living Will?
  4. Are all of your real estate holdings located in Wisconsin?
  5. Are those who will assist in the management of your estate residents of Wisconsin?
  6. Have you considered the non-probate advantages of a Living Trust?
  7. If you have a Living Trust, have you retitled your assets to avoid probate?
  8. Have you maximized non-probate transfer techniques?
  9. Have you reviewed and implemented the advantages of a Marital Property Agreement?
  10. Do you know if your estate will be subject to estate tax?
  11. Do you intend to treat all of your family members equally with no special consideration for any special need or special asset distribution?
  12. Is your selected administrator able to manage your assets and any family business you own?
  13. Are those who will inherit from you mature enough to receive the inheritance?
  14. Are you concerned with expenses you may encounter should your health fail?
  15. Are you aware of the true market value of your estate assets?
  16. You have been married only once?

We are additionally concerned for those who have not addressed the following:

Guardians.  Named guardians for minor children, always a most important family decision. Remember that the guardian will make value based and lifetime impacting decisions for your minor children.  These individuals need not, and in some instances, should not, be the trustees of the funds that you have left to provide guidance and/or raise your children.

Beneficiary Designations.  Updated life insurance and retirement plan beneficiary designations. This is significantly important since Congress has recently passed the SECURE Act, which has limited the ability to tax defer retirement savings for non-spousal beneficiaries.  The “lock down” has significantly depressed investment account values; you cannot let an uninformed beneficiary designation further deplete the value of those accounts.

Succession Plan.  Do you have a business interest which is intended to be passed on to interested family members? Your estate plan is your ‘default’ succession plan. Yes, your intent is to carefully review options and phase in the plan over a number of years.  But a tragic event denies that timing.  An estate plan can provide at a minimum an ‘option’ to interested family members to obtain the business in a fair manner for all family members.  This is YOUR plan.  If you do not plan, then the plan becomes those of your executor and family members (with the influence of spouses) with no guidelines or rules.  This situation often creates acrimony and hurt feelings that never are forgotten.

Flexibility.  We will often be contacted by family members concerned about a parent’s health/capacity and asking our office as to what plans do mom and dad have. Unfortunately, our clients are mom and dad, and we need to respect confidentiality.  As parents age, or are a surviving spouse, we will advise that one or more children be named as co-trustees and co-agents, so that children not only can act on behalf of a parent, but also be entitled to the documents that reflects that designation as a co-fiduciary. Though this has always been a planning concern, and an opportunity, the “lock down” makes this even more critical.  With mobility restricted, it is critical that parents’ affairs can be handled for them by those co-fiduciaries who are not as restricted.  For example, my mother is in assisted living and is quarantined in her apartment.  As a co-fiduciary, I can handle her affairs on her behalf, and we are especially benefited by online banking.  Encourage family members to put plans in place so that trusted individuals can assist in times of diminished capacity and/or mobility.

How to Accomplish.  When we return to ‘normal’, we look forward to meeting with you in person to discuss your objectives and provide practical recommendations to achieve those objectives in an efficient and understandable manner.  During this challenging “lock down,” we can still assist you by arranging for a telephone conference or video conference.  We would provide materials to you prior to the conference so you can begin to organize your thoughts and questions.

In the terms of the current jargon -This is your Essential Personal Business – Allow us to assist.

If you have any questions about this article, please contact our estate planning attorneys at 262-334-3471 or [email protected]

Originally published: May 5, 2020.

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Disclaimer: The information contained in this post is for general informational purposes only and is not legal advice. Due to the rapidly changing nature of law, Schloemer Law Firm makes no warranty or guarantee concerning the accuracy or completeness of this content. You should consult with an attorney to review the current status of the law and how it applies to your unique circumstances before deciding to take—or refrain from taking—any action.  If you need legal guidance, please contact us at 262-334-3471 or [email protected]