Commonly Asked Questions About Estate Planning
Do all wills have to go through probate?
- In Wisconsin if a deceased person leaves more than fifty thousand dollars ($50,000.00) in assets titled only in their name, it is likely that their Last Will and Testament will have to be filed and a probate case opened. Contact us to discuss how to avoid probate.
If I die without a will, does the state get my assets?
-More likely than not, NO. If you have some living relative somewhere the intestacy statutes of Wisconsin will control which relatives would receive your assets. Contact us for answers to your estate planning questions.
If I fell ill and incapacitated would my spouse be able to make decisions for me?
-Not without a Durable Financial Power of Attorney and a Durable Healthcare Power of Attorney. Without these documents a spouse would have to be appointed guardian of their ill spouse and such proceedings are time consuming and expensive. Contact us to avoid expensive guardianship proceedings.
What is a Will?
-A Will, often referred to as a Last Will and Testament, is a document that sets forth a person's requests as to how their assets are to be distributed upon their death, who is to administer those assets or carry out the requests and may contain appointments of guardianship or trustees. A will is probated. Contact us with your Will questions.
What is a Trust?
-A Trust, often times referred to as a Living Trust is a document that sets forth a person’s requests for how their assets are to be managed and/or distributed upon their death. The Trust names a person to control the assets. This person is called a Trustee. The person who creates the Trust is called the Grantor, Settlor or Trustmaker. The Grantor, Settlor or Trustmaker may also be the Trustee of the revocable Trust they create and remain in control of all their assets. A Trust is not probated. Contact us to prepare your trust.What if I change my mind? Can a living trust agreement be changed or revoked?
-Living trusts may be set up in any way that is desired by the person or people putting assets into the trust. Revocable living trusts allow you to amend any provision of the trust or to totally revoke the trust. Contact us with your Trust questions.
If I have a living trust, do I still need a will?
-If all assets are held in the name of the living trust, a will is not used at the time of death. However, a will should be signed in conjunction with a living trust in case an asset is inadvertently left out of the trust. The will simply states that any property not already in the living trust should be transferred to the trust. This documents is called a POUROVER WILL since it POURS assets over into the trust. Contact us with your Trust questions.
Does a living trust have to file income tax returns?
-As long as the person or persons who put the assets into the trust are the managers of the trust, they will continue to file and pay income taxes in exactly the same way they did before the trust was created. Income generated by trust assets is simply treated as income of the individuals, so no extra tax returns are required.
Can a living trust save money on taxes as well as avoid probate?
-Use of a living trust may save on income, gift, estate and inheritance taxes, depending upon the value of the estate and the makeup of the assets. Other documents may also be used for tax planning, but the living trust can incorporate both tax planning and probate avoidance.
When my spouse passed away, no probate was required. Why should I be concerned with probate of my estate?
-Don’t be fooled into thinking probate is not required because probate did not arise on the death of the first spouse. It is very likely that no probate is required on the first death since many couples own all property in joint tenancy. This form of ownership allows the surviving joint tenant to inherit property without going through the probate process. However, when only one joint tenant survives, probate will be required to transfer assets upon the remaining joint tenant’s death. Contact us to avoid Probate.
How large must an estate be to make a living trust worthwhile?
-One benefit of a living trust is that it allows assets to be transferred to beneficiaries with no court involvement. Prior to executing an estate plan, cost of completing the estate plan and expense of steps required upon disability and/or death utilizing various types of planning tools should be compared. Specific probate fees may vary from state to state and from attorney to attorney.
Although administration of a living trust is generally less costly than probate, a trust will not eliminate all fees of administration since, even with a trust, when a death occurs titling must be verified, values determined, expenses paid, and distributions made. The trust does eliminate court involvement, maintains more privacy than probate, eliminates notice requirements and waivers from beneficiaries, and, in many cases, simplifies implementation of tax planning techniques.
The benefit of a living trust also depends upon the personal desires and goals of each individual. The right estate planning tool for you depends upon your personal goals. Contact us to help you set those goals.
In some cases, the desire to keep affairs private and to allow for transfer of assets without waiting periods required in probate may make use of a living trust beneficial regardless of the level of cost savings. The primary goal of any estate plan must be to achieve the individual’s desired objective. No minimum estate value is required in order to benefit from a living trust. The type of assets involved and overall goals should be assessed to determine whether a living trust would be beneficial.
What is the cost to set up a living trust?
-Costs of a living trust will vary substantially from attorney to attorney and from state to state, and costs will vary depending upon your particular estate planning needs. Many attorneys will provide an initial consultation at a minimal charge to allow you to meet the attorney and to discuss your individual situation. At the conclusion of that meeting, a cost estimate should be made available to enable you to balance cost vs. benefit.
The cost of the living trust may exceed the cost of a will. However, a comprehensive estate plan, whether a will or trust is utilized, should include an analysis of titling and beneficiary designations on existing assets. Otherwise, the will or trust will not effectively transfer assets to the correct beneficiaries. If this analysis is properly completed, the cost of an estate plan utilizing a will or a trust will not be significantly different in cost. Contact us for your estate plan analysis.
In order for a living trust to work properly, it is important that the law office provide advice and forms to help in changing the name on the title of assets to the trust. It is also important that the living trust agreement is coordinated with a will, a durable power of attorney and various other documents which all work together to accomplish your goals. When comparing costs of living trusts, services provided should also be considered. If letters to transfer assets, consultations, and all documents are not included in the fees quoted, a bargain may not be such a bargain. Prior to deciding to purchase a trust, you should be aware of total cost involved.
Will a living trust protect my assets from potential nursing home costs?
-Revocable living trusts will not shield assets from nursing home costs. Assets held in a revocable living trust will be considered to be your assets for purposes of Medicaid eligibility. Medicaid is the government program which covers costs of nursing home care for those eligible, but eligibility is available only to those whose income and assets are under allowable levels. If you can manage and control the assets, the assets are considered as yours for purposes of Medicaid eligibility. However, there are other estate plan techniques that you may desire to discuss with an attorney that can have an impact upon nursing home care. Contact us with your nursing home cost questions.
Is an attorney necessary in setting up a living trust?
-Many sources exist for ‘purchase’ of a living trust. Do not purchase a living trust without personally meeting with the attorney who drafts it!
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