By Attorney Denis Regan

Estate planning is critical for everyone. Without a will in place, you will have no say about where your assets will go when you die. Two other areas of estate planning law that are often forgotten about but can be just as important are guardianship and power of attorney.

If you are at the stage of your life in which you are considering how your estate will be passed on to your loved ones, one option to consider is a living trust. A living trust can accomplish many of the same objectives as a will, and it has several key benefits that wills do not have. 

What Is a Living Trust?

A trust is a written document that names someone in charge to manage property for the benefit of others. A trust is classified as “living” when it is created by the property owner when he or she is alive. A living trust is also known as a revocable trust or a living revocable trust.

An estate may be contested when an interested party (such as one of the beneficiaries) objects to using the will to distribute an estate, in whole or in part. Such objections can lead to significant delays in distributing the property to heirs, so it is important that parties to such contests be represented by qualified legal counsel who can move the process along in a timely fashion.

Because the testator (the person who made the will) is dead during the probate process, proving what he or she intended at the time the will was signed can be difficult, although not impossible.

Common Challenges Made in Probate Court

Estate administration is complex, because no two wills and no two estates are alike. There are, however, common issues that are raised in probate court related to contesting a will. These include:

Most people understand that it is important to have a will, but many people do not understand that what you include in your will is what makes it so important.

Your will is a legal document used to express your final wishes with regards to the handling of your personal property and other assets. It is a final way, upon your passing, to show your loved ones that you care.

Knowing what you can and should include in your will can help you feel more confident and secure. Your will should address the following issues:

No matter your age, it is important to plan for how your affairs should be handled if you are unable to take care of them yourself. One way of doing so is to create a power of attorney for finances, which will name a person who is authorized to make financial decisions for you if you ever become incapacitated.

Establishing a Power of Attorney

Power of attorney for finances can be established by filling out and signing a form provided by the Wisconsin Department of Health Services, or a document can be prepared by an attorney. The form or document will allow you to name an agent who can make decisions about your finances and the property you own. The power of attorney should include:

• The name and contact information of your agent, as well as any successor agents who you wish to name if your agent is not available or willing to act on your behalf.
• Your permission to give your agent general authority in any or all of the following areas:
  • Real property - Buying, selling, leasing, or managing real estate, including making mortgage payments and paying property taxes.
  • Tangible personal property - Buying, selling, or managing your physical belongings.
  • Digital property - Accessing and managing your electronic accounts and digital files.
  • Stocks and bonds - Buying, selling, or exchanging investments.
  • Commodities and options - Buying, selling, or exchanging futures contracts.
  • Banks and other financial institutions - Making deposits or withdrawals from bank accounts.
  • Operation of entity or business - Managing your business interests and performing any ownership duties that you would typically handle.
  • Insurance and annuities - Paying insurance premiums, modifying insurance plans, and applying for benefits on your behalf.
  • Estates, trusts, and other beneficial interests - Managing any interests for which you are the beneficiary.
  • Claims and litigation - Filing civil lawsuits or claims on your behalf or representing your interests in court cases.
  • Personal and family maintenance - Making child support or spousal maintenance payments for you and meeting the financial needs of the family members you support.
  • Benefits from governmental programs or civil or military service - Managing your enrollment in benefits programs such as Social Security, Medicare, or Medicaid.
  • Retirement plans - Managing 401(k) or IRA accounts, including making contributions or withdrawals.
  • Taxes - Filing your tax returns, paying taxes owed, and collecting refunds.

You may also include special instructions regarding what your agent is or is not authorized to do. The power of attorney will become effective immediately after it is signed, unless you provide a date or describe certain circumstances for when it should go into effect. Unless you state otherwise, your power of attorney will be “durable,” meaning that it will remain in effect if you become incapacitated.