Attorney Shannon Wynn: Remember the safe deposit box

Estate planning clients often give much thought to avoiding probate (see related article). Wynn at Law LLC helps jog your memory to make certain you haven't 'forgotten' an asset that would trigger probate. A common one forgotten, as an example, is the safe deposit box. Yes, banks still have them in the vault. In fact, it's a common storage place for the Last Will and Testament. Why not? It's safer than a home safe, and someone always has a key. But what else is in there?

Wisconsin allows an ‘interested party’ to access the safe deposit box to retrieve the Will. On the death of a sole owner of a safe deposit box, a safe deposit box company (bank) allows 'limited' access to the box by the spouse or next of kin of the deceased lessee, a court clerk, or other interested person for the only purpose of looking for a Will. The assets also in the box are not to be touched. While that interested party is in the box, he or she is supervised to make sure that doesn't happen. If the Will itself doesn't name anyone to the receive the safe deposit box assets, probate may be necessary.

A strategy to consider is naming an adult child or family member or friend as a joint owner of the safe deposit box, with a key. This alleviates the problem of having a sole owner of a box pass away. Then the Will can be retrieved and so can the assets without going through probate. (Note: There could be tax considerations when the joint owner takes possession, it only avoids probate because the joint owner of the box is considered joint owner of the asset.)

By the way, if there is a sole owner, whomever is the 'interested party' is may have to furnish proof of death as it deems necessary (e.g., the death certificate of the owner). That could delay things as well. With a joint owner who is a keyholder, they have access anytime. This could be a time-saver in the case of a loved one's passing. Just remember, that joint owner will also have access to the safe deposit box contents while the loved one is living, too.

 

*The content and material in this original post is for informational purposes only and does not constitute legal advice.  

Photo by Arman Zhenikeyev, used with permission.

Attorney Shannon Wynn: The power of advanced directives

There are dozens of intersections in life that call for an attorney's insight. Wynn at Law LLC gladly steps in to advise clients who have reached those intersections, like bankruptcy or buying a home. One of the most emotionally taxing of the intersections is how to handle the decisions at the end of a life, whether it's sudden or the result of a long-term illness. Planning ahead, before you reach this inevitable intersection, can make the situation more bearable, or at least manageable.

In one of our earlier articles, we talked about the Last Will and Testament -- a crucial part of estate planning after someone passes. A Living Will is a legal document that sets out a person's healthcare wishes in the event they cannot articulate the wishes. A Healthcare Power of Attorney (POA) is a separate alternative. The Living Will has your instructions -- what you will and will not permit. The POA designates an 'agent' to make the decisions. Usually, the agent is a spouse, but can be a close friend. No matter who you choose, you have to let that agent know your wishes clearly.

The POA is even more powerful when it goes beyond healthcare decisions to include financial decisions as well. This Durable POA ensures the person making the healthcare calls has the money to pay for the procedures. The signer gets to choose how limited in scope the POA is: For example, it can be limited to using bank accounts only and not things like selling the house.

Where Wynn at Law LLC adds value with such a POA is that the document and our Firm can be – if needed – the go-between if things get charged up among family members or family and caregivers. Things like resuscitation, painkillers, tube feeding, and organ donation can be powderkeg issues when they're not backed up by a Living Will or a POA.

'Why would you create a Durable POA over creating a Living Will?' is a common question. The answer is simple: The POA agent can represent your thoughts on things for which you didn't foresee in drafting a Living Will. You can't plan for everything in writing in a Living Will, and the bills don't stop just because a person is hospitalized. When you and your family come upon this intersection in life, these estate planning tools help keep the focus on the care you would have chosen and nobody has to guess.

*The content and material in this original post is for informational purposes only and does not constitute legal advice.  

Photo by Viktor Levi, used with permission.

Attorney Shannon Wynn: What exactly is ‘probate'?

Wynn at Law LLC provides estate planning services – wills are one example. ‘Probate’ is a commonly used term in estate planning, especially these days when many clients have an estate worth more than $50,000. First, a bit on probate… then why $50,000 is an important number.

Probate is a court process whereby a will is legally ‘proven’ as the true last testament of the deceased. Essentially, the document is reviewed and validated. It came to be a more common process in the 16^th century when greedy relatives (or non-relatives) began making phony claims on a dead person’s property. It comes from the same Latin roots as ‘probation.’ In probation, a person has to prove he can live within the law… in probate, a document has to be proven to be authentic and created within the law. Probation and probate have nothing else in common other than the root word, meaning proof.

The ruling of a probate court is the first step in resolving all claims and distributing the deceased person's property in a will. The court officially designates an executor to carry out the will’s instructions. Usually, the executor is named already when the person made out the will. If a will is contested, it happens in probate court.

What else happens in probate?

·         Creditors must be notified and legal notices published.

·         Homes/property/other possessions may have to be sold off to pay those debts, or otherwise make distributions evenly to the beneficiaries.

·         If there is a lawsuit over the death, or the deceased was party to pending lawsuits, those are noted and settled (if possible).

·         Estate taxes, gift taxes or inheritance taxes must be considered if the estate exceeds certain thresholds. Working with an estate planner can minimize these.

Some assets, like life insurance, are not counted because they are transferred directly to the beneficiaries and avoid probate. Death benefits are not included in an estate. Living Trusts – usually created to hold large assets – also are excluded from probate. Joint tenants (e.g. husband and wife) are allowed the joint property in a ‘right of survivorship’ if one dies, and this, too, avoids probate. Bank or investment accounts designated Transfer on Death (TOD) avoid probate as well. Real Estate can also be re-titled to avoid to probate, through tools such as a Transfer on Death Deed (TODD).

Here’s where the $50,000 comes into play. For estates in Wisconsin, after all those subtractions, the small estate threshold is $50,000. If the estate is valued below that and there is a will, probate is avoided. If there is no will, or if the estate is more than $50,000, probate is required. Most probate proceedings in Wisconsin aren’t very onerous. They are informal, with no squabbles between beneficiaries and few creditors. This is little more than an application to the court, followed by a summary judgment. A more formal proceeding requires the court to help distribute assets.

Wynn at Law LLC works with clients to secure their assets in a will or trusts to hold up in probate, or avoid it all together.

*The content and material in this original post is for informational purposes only and does not constitute legal advice.  

Photo by Marzky Ragma Jr., used with permission.

Attorney Shannon Wynn: Who needs estate planning? Everyone!

Wynn at Law, LLC clients sometimes have a shocked look when we bring up estate planning. “We're not dying!” “We're not old!” The best time to set in motion an estate plan is when you're neither old nor dying. No crystal ball or family tree can predict how or when you'll age, get injured, or pass on.

Estate planning is sometimes overlooked because a client doesn't think they have an estate. The fact is, everyone has an estate. Your estate is everything you own, including your car, home, other real estate, bank accounts, investments, life insurance, furniture, and personal possessions.

If you don't have a plan for these, the state has one for you

Wynn at Law, LLC works with you to ensure your wishes are carried out for whom you want to receive something of yours and when they are to receive it. Sounds like a will, right? A Last Will and Testament is part of the plan for when you pass on, but only scratches the surface of what estate planning entails. A thorough plan includes what happens if you're living, too.

You don't want the courts divvying up what's yours, but it will. Without an estate plan, the courts can choose how your assets are used to care for you through a conservatorship or guardianship. Those two, long, technical terms are the complicated way of saying you don't have a say in a process that's going to be open to the public and difficult to end even when you recover. An estate plan includes:  

·         Instructions for your care if you're suddenly disabled

·         Establishing a guardian for minor children if you can't care for them

·         Protecting property and assets from loved ones who might be irresponsible with money or their spouses, current or estranged.

While speaking of disability or death can be a morbid topic, it is a topic that can help you protect your being, your assets and your legacy. That is worth the peace of mind. 

 

*The content and material in this original post is for informational purposes only and does not constitute legal advice.

 

 Photo by, used with permission.