Lallemont Law, LLC works with residents of Minnesota and Wisconsin to develop individualized estate plans based on your specific needs. Many people 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
Probate is the legal process of settling your estate in court after you die. Your property is gathered and inventoried, your debts are paid, and everything left over is divided among your heirs. Your personal representative is responsible for “probating” your will. If you have no will or did not name a personal representative, the court will appoint one for you. The probate process is expensive and may take one or more years to fully settle your estate. With proper estate planning, you can avoid the probate process.
If your probate estate is worth $75,000 or less, your heirs may be able to collect the property without going to court by using an Affidavit for Collection of Personal Property. Heirs may not take your personal property until 30 days after your death. If your personal property exceeds $75,000 or you own real estate in your name alone, your estate must be probated.
Lallemont Law can assist you in developing an individualized estate plan to avoid the probate process.
- Property ownership in more than one state
- Complex family dynamics (for instance, second marriages)
- High net worth
- You do not have children
- Your child or a named beneficiary has special needs or is disabled
Lallemont Law can assist you in determining the best estate planning tools for your individual circumstances.
In the event you are unable to manage your own finances usually due to a medical condition such as a developmental disability, dementia, brain injury or stroke, your appointed Attorney-In-Fact carries on any financial and/or business related transactions on your behalf. Without a Power of Attorney, the court must intervene and appoint a Conservator to act on your behalf. Conservatorship is a highly regulated and expensive process, involving court costs, attorneys’ fees for both the petitioner and the proposed protected person, and any ongoing conservator fees paid from your estate. The Power of Attorney is a lifetime document that terminates upon your death.
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.
A Will is 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.
A person is always free to act pro se (for himself, as his own lawyer). The problem with getting estate planning documents off of the internet is that you have no idea who created the document. Further, each state has specific requirements for the validity of a Will. Most websites offer generic forms that do not meet the requirements of each state. A lawyer can bring issues to your attention that most people are unaware exist. More often than not, there are issues that are unique to you that require custom drafting.
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.
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
- Acquiring or disposing of assets
- Children who were minors when the Will was prepared that are now the age of majority
- A substantial change in your financial circumstances
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.
Minnesota Statutes Chapter 501C (https://www.revisor.mn.gov/statutes/?id=501C)
Wisconsin Statutes Chapter 701 (https://docs.legis.wisconsin.gov/statutes/statutes/701)
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).
Someone you appoint to make health care decisions for you when you lack decision-making capacity, unless otherwise specified in the health care directive.
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.
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