Estate Planning

Will or Trust, Power of Attorney and Health Care Directive

Estate Planning

Overview

At Lallemont Law, LLC, we strive to develop an individualized estate plan based on a client’s specific needs. A lot of clients think because they are not married or do not have a lot of money, they do not need an estate plan. Regardless of the size of your estate, the reason you need an estate plan is to make sure the right “stuff” goes to the people you want it to go to.

Without an estate plan, your loved ones will have to make decisions without your input. Simply telling your loved one your wishes is not enough. An estate plan consists of three basic parts: the Will or Trust, Power of Attorney and Health Care Directive.

Estate Planning Frequently Asked Questions

I’m not married, why do I need an estate plan?

Regardless if you are married, if you have children, it is extremely important to make plans in the event of your incapacity or death. Without legally enforceable documents, your loved ones (or the court) will be forced to make difficult decisions regarding the care and financial support of your children.

What is a Last Will and Testament?

A document that state laws recognize as legally enforceable to convey your property upon your death in whatever manner you direct. Wills offer you great flexibility for accomplishing your wishes. They also name the personal representative of your estate (also called an executor), guardian(s) for your minor children, and decide how taxes and debts will be paid.

Can’t I use the internet to write my own Will?

A person is always free to act pro se (for himself, as his own lawyer). The problem with the internet is that the forms provided can be  posted by anyone. You have no idea what the background of the person posting the form and people post whatever they like, without necessarily knowing the facts or expressing themselves clearly even when they do. Without a lawyer you must judge for yourself whether your situation is actually as simple and ordinary as you believe. More often than not, there are issues that are unique just to you that require custom drafting.

What is a Personal Representative or Executor of an estate?

The personal representative, also called the executor, is the person you designate in your will to administer your estate. After your death, the court appoints your designated personal representative. Once appointed, he or she has the legal authority to carry out your wishes as stated in your will.

When do I need a new estate plan?

Your estate plan does not expire although it is a good idea to review your estate planning documents about every five years to determine if events have occurred that necessitate a change. Examples of events include (but are not limited to):

  • Death of the individuals named in your will to receive all or a portion of your estate
  • The birth of children or grandchildren subsequent to the preparation of your will
  • Divorce
  • Marriage
  • Acquiring or disposing of assets
  • Children who were minors when the will was prepared that are now the age of majority.
What is a Trust?

In its most simple terms, a trust is a document that provides a legal agreement between three parties:

  • The person making the trust: This is the individual who creates the trust agreement, commonly referred to as the grantor, trustor or settlor;
  • The trustee: The person or entity responsible for managing the property in the trust; and
  • The beneficiary or beneficiaries: The people or entities that will receive the property titled in the name of the trust.

Statutes:

Minnesota Statutes Chapter 501C (https://www.revisor.mn.gov/statutes/?id=501C)

Wisconsin Statutes Chapter 701 (https://docs.legis.wisconsin.gov/statutes/statutes/701)

What is a Health Care Directive?

Minnesota Statute Chapter 145C defines a Health Care Directive as a document that may include one or more health care instructions to direct health care providers, others assisting with health care, family members, and a health care agent (appointed by you in the document).

In Wisconsin, the document is referred to as a Power of Attorney for Health Care and is outlined in Chapter 155 of the Wisconsin Statutes. The document appoints a health care agent to make decisions about your health care in the event you are found incapacitated by two physicians, or one physician and one licensed psychologist, who personally examine you and sign a statement specifying that you are incapacitated. Wisc. Stat. 155.05(2).

What is a Health Care Agent?

Someone you appoint to make health care decisions for you when you lack decision-making capacity, unless otherwise specified in the health care directive.

What is a Power of Attorney?

A document that authorizes another person, called an agent or attorney-in-fact to act on your behalf in the event you cannot perform tasks stated in the document. It is important to note that the Power of Attorney does not include health care decisions. In order to appoint someone to make decisions about your healthcare in the event you are unable to, a health care directive is needed.

Statutory Authority:

Chapter 244 of the Wisconsin Statutes is the Uniform Power of Attorney for Finances and Property. https://docs.legis.wisconsin.gov/statutes/statutes/244/I/05

Chapter 523 of the Minnesota Statutes Powers of Attorney https://www.revisor.mn.gov/statutes/?id=523