Wisconsin Estate Plans: Frequently Asked Questions in Estate Planning

By Attorney Amanda N. Sacks Schloemer Law Firm, S.C.

If you’ve been meaning to put in place an estate plan for years but have been procrastinating, you’re not alone. This article addresses some of the most common questions you may have. Just remember – you do not need to know everything before you start.  Our job as your attorney is to walk you through the process. All you need to do is call to schedule an initial meeting, and we’ll take it from there.

Schloemer Law Firm is a full service law firm located in West Bend, Wisconsin. Our team of experienced estate planning attorneys frequently assist clients and businesses in all of their estate planning related matters, from establishing basic documents (Wills, Trusts, Powers of Attorney), to probate and trust administration. If you have questions, please feel free to call us to set up an initial free estate planning consultation.

How much does an estate plan cost in Wisconsin?

Prior to a meeting, it is difficult to estimate a fee since we customize every plan to a client’s individual needs.  This is why we offer a no cost initial consultation to meet with you and learn about your objectives.  At the end of the initial conference, we will provide an estimate.  These fee estimates include all customary conferences and document preparation. Fees typically fall in the range of $750-$3,000, depending on whether you are single or married, whether it is a first marriage or blended family, assets (Do you own real estate or real estate in different counties? Do you own a business? Other unique assets?), and objectives (Are you concerned with Title XIX planning? Are you concerned with estate taxes?).

What is the process to set up an estate plan?

We believe the estate planning process should be simple and straightforward for our clients. We know many people put this off, so our goal is to make the process as easy as possible for you. After you schedule your initial appointment, we will work to guide you through the process.

  • Before Initial Meeting – Data Collection. We ask clients to complete a ‘Data Sheet’. The information provided will be helpful for the initial conference.
  • Initial Meeting – Define Goals and Discuss Options. At the initial meeting, your estate planning attorney will get to know more about you, your family, and your goals. Your attorney will also discuss planning alternatives, including using a Will versus a Revocable Living Trust, and probate avoidance. You do not have to have all of your decisions made in advance of this meeting; the purpose of this meeting is to discuss decisions with your attorney.  Based on this discussion, your attorney will be able to provide recommendations as to your planning, and your attorney will also be able to provide a fee estimate.
  • Draft & Review Documents. After the initial meeting, your attorney will prepare and send you draft documents. We will include comments to highlight key provisions to aid in your review. You should call to schedule a follow up meeting with your attorney at this point.
  • Final Meeting – Review & Finalize Documents. At the next meeting with your attorney, they will review all of your documents with you and answer your questions regarding the documents. Once you are satisfied and understand your documents, we will then proceed with signing. We will provide a notary and two witnesses.
  • After the Final Meeting – Implement the Plan. Your attorney will provide you with a list of any follow up action needed after your final meeting.  For example, beneficiaries may need to be updated, and if you established a Living Trust, assets may need to be transferred. You will also need to decide where to keep your documents (preferably a fireproof safe), and let one or more individuals know where to find the documents if needed.

What estate planning documents should I have?

At a minimum, we recommend clients have a Last Will & Testament, Durable Power of Attorney for finances, and Living Will/Health Care Power of Attorney.  Depending on your personal objectives and life circumstances, we may additionally recommend a Revocable Living Trust or other documents.

What is a Revocable Living Trust?

The Revocable Living Trust is a substitute for a Will.  Accordingly, just as in a Will, it contains an individual’s or a couple’s personal planning decision, including provisions for who assets should be distributed to upon death and provisions that appoint someone to manage assets upon incapacity or death. Living Trusts are most often used to avoid probate.

In Wisconsin, married couples will typically prepare a Joint Revocable Living Trust to hold their assets due to marital property law.

What is the difference between a Trust-based plan and Will-based plan?

Living Trusts are flexible documents that provide several additional benefits.  Generally, (1) Living Trusts are more private than a Will; (2) Living Trusts allow you to avoid probate; (3) if you own assets in another state, Living Trusts also allow you to avoid probate in that state, (4) if you are appointing an out-of-state agent, Living Trusts allow your agent to avoid the cost of posting a surety bond; (5) trusts for children created under a Living Trust are administratively more efficient; (6) a Living Trust is more difficult to challenge than a Will; and (7) Living Trusts provide an emotional benefit for your heirs in that they will be able to handle your affairs in a more private and expedient manner.

Should I have a Revocable Living Trust?

Whether a Revocable Living Trust is appropriate for you will depend on your family situation and planning objectives.  You should review with a qualified estate planning attorney. We offer free initial estate planning meetings to discuss this decision. If you are a Wisconsin resident, you should meet with a Wisconsin estate planning attorney.

What is probate?

Probate  is the process of the court supervising the administration of the assets of a decedent.   Under Wisconsin law, probate can be avoided through proper advance planning.  Beneficiary designations or a trust can be used to avoid probate, but if those steps haven’t been taken (or properly executed), there is a good chance that an estate will end up in probate.

How do you avoid probate?

A Living Trust avoids probate proceedings.  Avoidance of probate provides results in less time for administration.  Additionally, avoidance of probate eliminates the probate filing fee.

Under Wisconsin law, and depending on the situation, you may also be able to use beneficiary designations to avoid probate, such as Payable on Death, Transfer on Death, or Beneficiary Designation.  A Wisconsin Designation of Transfer on Death (TOD) Deed can be used to avoid probate on real estate.  You should discuss with an experienced Wisconsin estate planning attorney to determine what is best for you and your family.

Why do you want to avoid probate?

Probate adds extra unnecessary cost and time to transfer assets to your loved ones.  Wisconsin probate courts impose a $2 per $1,000 filing fee on the inventory filed with the court so as to reimburse the court for the cost it expends in its oversight responsibility.  For example, a $1,000,000 probate estate would result in a $2,000 filing fee with the probate court. There will also be additional attorneys fees, typically several thousand dollars ($2,000+). 

Probate also takes time.  Most probates take at a minimum 9 months.

Probate is also public.  An inventory of assets and other documents must be filed with the court system and are made a public record.

What is a Wisconsin TOD Deed?

Wisconsin law permitted an individual to use a Transfer on Death Deed (TOD Deed) to transfer real estate to beneficiaries without probate. The TOD Deed does not affect current ownership, but transfers the property to the beneficiary on death.  A TOD Deed can be used to transfer a property to multiple beneficiaries.  Depending on the situation, this may be a good alternative to a Trust for probate avoidance.

Do I need a Will?

A Will is a crucial document to name who should handle your estate, how your estate should be distributed, and who should act as Guardian of any minor children.

What if I die without a Will?

Without a Will, your estate may not be distributed to your intended beneficiaries, and the Court will appoint someone to handle your estate.  For example, most people assume that all assets will go to their spouse, but if there are children from a prior marriage, not everything will pass to the surviving spouse under Wisconsin law.

What if I die without a Will?

Without a Will, your estate may not be distributed to your intended beneficiaries, and the Court will appoint someone to handle your estate.  For example, most people assume that all assets will go to their spouse, but if there are children from a prior marriage, not everything will pass to the surviving spouse under Wisconsin law.

Where should I keep my estate planning documents?

Your original documents should be kept in a safe place, preferably in a fireproof safe.  An alternative is a bank safety deposit box; however, it can be difficult to access a bank safety deposit box when documents are needed, so we have found a home safe is often preferable.

Should I give my children copies of my documents? 

It is your decision, but we do not typically recommend providing originals or copies of documents to your children unless you are at a point where they may need to use them in the near future, as many clients amend or change their documents during their lifetime.  On the other hand, if your child is helping you pay your bills, they may need a copy of your Durable Power of Attorney to be able to act on your behalf.  You should let your children know where your documents are located, so your children know how to access them in an emergency.  However, you should retain all of your original documents in a secure location.

I can’t find my estate planning documents – what should I do? 

It is essential to have original estate planning documents available in case of lifetime disability or death.  Without these documents, a guardianship proceeding may be required, and your estate may not be handled according to your wishes.  If you cannot locate your estate planning documents, it is time to have new documents drafted and signed.  Contact an experienced Wisconsin Estate Planning attorney at Schloemer Law Firm, S.C., to review your options.

When do I need to update my Estate Plan?

If there are any major life occurrences (death, marriage, divorce, disability, health concerns), an estate plan should be reviewed immediately. As life changes, estate plans should also evolve and be updated.  Read more about when to update your plan in our previous blog “Do I Need to Update My Estate Plan”.

What is a Durable Power of Attorney?

At some point, you may be unable to make important decisions to manage your affairs, either temporarily or permanently. A Durable Power of Attorney gives someone you trust the right to make important decisions and act on your behalf, such as making sure bills are paid and assets are managed, invested, etc.

In Wisconsin, a Durable Power of Attorney (POA) remains in effect even if you become incapacitated, unless it explicitly states that it terminates. The Wisconsin durable power of attorney form is a legal document that allows an agent to act for the principal for financial decisions.

What happens if I don’t have a Financial Power of Attorney? Can my spouse or children handle my finances?

Without this document in place, it may be difficult, expensive, or even impossible for your loved ones to act on your behalf, and a court proceeding to appoint a guardian may be required. The person appointed by the court to be your guardian will not necessarily be the person you would choose for the job.

Who needs a Durable Power of Attorney?

Everyone over the age of 18 should have a Durable Power of Attorney to name someone to legally act for them. Parents have no legal authority to act for adult children without this document.

What is a guardianship?

A guardian for an adult is a person or agency appointed by a court to act for an adult who has been found to have a functional impairment in decision-making or communication that meets the legal standard for a finding of incompetence. No person in Wisconsin is a guardian for an adult unless appointed by a court, and no guardian has any powers over an adult except those given by statutes and the court order.

A guardianship can be avoided by having a Durable Power of Attorney for finances and a Living Will/Health Care Power of Attorney. 

What is a Living Will or Declaration to Health Care Professionals?

A Living Will, allows you to state in writing your preferences about life-prolonging medical treatment in case you are unable to communicate your preferences.

More specifically, the Declaration to Health Care Professionals (Living Will) form makes it possible for adults in Wisconsin to state their preferences for life-sustaining procedures and feeding tubes in the event, the person is in a terminal condition or persistent vegetative state. 

What is a Health Care Power of Attorney?

This document permits you to state your wishes and name someone to make health care decisions for you if you should become incapacitated, whether temporarily or permanently. More specifically, a “Living Will” informs health care providers of your wishes about life sustaining treatment in cases of a terminal condition or persistent vegetative state, while a “Health Care Power of Attorney” designates one or more persons to make health care decisions on your behalf, should you become unable to make those decisions. 

Who should I name as my Health Care Agent?

You should name one agent, followed by at least one or two successor agents.  You should choose someone who you trust to follow your wishes regarding your health care decisions.  Generally, we do not recommend naming more than one person as agent, since issues would arise if agents could not agree on a decision.  Practically, physicians would like to take direction from one individual, not a committee. 

Why do I need a Health Care Power of Attorney? Can’t my spouse and children make health care decisions for me?

Legally, your spouse and children cannot make health care decisions for you. In fact, your doctor may not even be able to share information with them about your condition if you do not have documents in place due to HIPAA laws. 

Can I use the Wisconsin state form Health Care Power of Attorney?

We recommend obtaining attorney assistance with completing the form.  Having an attorney assist will ensure that the document is customized and filled out correctly.  Most people do not fully understand the health care power of attorney, and the average person will often select the wrong decision compared to how they express what their decisions would be. 

Who needs a Wisconsin Health Care Power of Attorney?

Everyone over the age of 18 should have a Living Will/Health Care Power of Attorney. Even if you are young and healthy, you should think about who you want to represent you in case of the unexpected. If you have children who are 18, they should have these documents in place. Once someone turns 18, they are legally an adult, and parents cannot make health care decisions for them without these documents.

How do I name Guardians for my children?

If both parents pass away, a Court will assign guardianship.  You can nominate guardians for your minor children through a Last Will and Testament.  While a judge will ultimately have to appoint a guardian, a judge typically will defer to the wishes of the parent in the guardian selection process.

How much can I gift to my Children?

For 2022 the federal gift tax annual exclusion allows a donor to give up to $16,000 to any individual in any calendar year without using any of the donor’s unified credit exclusion amount and without filing a gift tax return.  If the donor is married, then the donor and spouse can give $32,000 in 2022.

For 2023 the federal gift tax annual exclusion allows a donor to give up to $17,000 to any individual in any calendar year without using any of the donor’s unified credit exclusion amount and without filing a gift tax return.  If the donor is married, then the donor and spouse can give $34,000 each year.  The annual exclusion is indexed to the inflation rate.

What is the Wisconsin Estate Tax?

Wisconsin does not levy an estate tax.

The Federal Estate tax only applies to larger estates.  In 2023, the filing threshold was $12,920,000.

Next Steps

If you have questions regarding estate planning in Wisconsin, or if you would like assistance in administering an estate in West Bend, Slinger, Germantown, Kewaskum, Port Washington, Menomonee Falls, Milwaukee, Washington County, Sheboygan County, Dodge County, Ozaukee County, Waukesha County, or Milwaukee County, Wisconsin, please contact the author of this article, Attorney Amanda N. Sacks, at [email protected] or  you can contact Schloemer Law Firm, S.C. at 262-334-3471 or by email at [email protected]

Originally published: December 8, 2022.


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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].