Month: February 2018

Make Sure Your Will Describes Your Property Accurately

Accuracy is important when making a will. You want to be as clear as possible when identifying your property and the people to whom you wish to leave it. For instance, if your will says, “I leave my son my car,” and you have two sons and three cars, you have not clearly expressed your wishes. Such ambiguity can ultimately lead to costly, unnecessary litigation between your family members as they struggle to understand what you meant.

No Estate Tax, No Worries?

Legal Description Helps Court Divide Property Between Niece, Nephew

Even when a court determines that your will was sufficiently clear, dissatisfied family members may still try contend otherwise. Recently, a Wisconsin state appeals court addressed just such a case. This lawsuit revolved around a will that contained a technically inaccurate, though legally sufficient, description of the deceased woman’s real estate.

When is Ancillary Probate Necessary in Wisconsin?

When someone passes away with property titled out of state, transferring those assets to their rightful owner can become more complicated than what should be expected from a traditional probate process. If you have property titled out of state or are set to inherit property from another state, you may need to go through what is called ancillary probate and potentially require help from an out-of-state lawyer to complete the process.

If an out-of-state resident passes away and his or her last will and testament expresses intent to pass real estate in Wisconsin along to someone, it will be necessary for the administrator of the estate, as named in the will, to file probate in the Wisconsin county where the land is located. The executor will need to furnish the probate court with a copy of the decedent’s last will and testament as well as documents showing that the estate has been entered into the probate court of the testator’s state.

There are two ways that real estate owned by an out of state resident can be transferred without going through probate. The first is in the event that six years have elapsed since the deceased’s passing when a copy of the will and out state probate are used to secure a certificate of assignment to transfer the title without probate. The second, “no personal representative has been appointed in this (Wisconsin) state for the estate of any decedent who was not a resident of this state at the time of his or her death,” the county Circuit Court may appoint an executor to take control of the real estate.

If you are inheriting real estate from out of state, you will need to follow the procedures for ancillary probate in the state where the property is located. That may include hiring an attorney or traveling to probate proceedings, possibly with the named executor of the estate if that is what is required. If you are asked to be the executor to an estate, it may also be a good idea to ask in advance if the testator has real estate out of state.

To avoid putting your loved ones through ancillary probate when you pass away, you will need to engage in forward thinking by creating a living trust, a transfer on death deed, or adding the individual as a co-owner to the title. Some of these can also avoid full probate both in and out of state, depending on the in-state laws.

Madison Trust and Estate Lawyers

The estate lawyers of Krause Donovan Estate Law Partners, LLC practice law in the areas of Probate, Wills, Estate Planning, and Trusts. We assist clients in and around Madison, Wisconsin with all matters related to estate planning, trusts, and probate matters. Our dedicated attorneys will even make house calls if you are unable to come to our office.

Contact our office by calling (608) 268-5751 to schedule a consultation or use our online contact form.

When is Ancillary Probate Necessary in Wisconsin?

When someone passes away with property titled out of state, transferring those assets to their rightful owner can become more complicated than what should be expected from a traditional probate process. If you have property titled out of state or are set to inherit property from another state, you may need to go through what is called ancillary probate and potentially require help from an out-of-state lawyer to complete the process.

If an out-of-state resident passes away and his or her last will and testament expresses intent to pass real estate in Wisconsin along to someone, it will be necessary for the administrator of the estate, as named in the will, to file probate in the Wisconsin county where the land is located. The executor will need to furnish the probate court with a copy of the decedent’s last will and testament as well as documents showing that the estate has been entered into the probate court of the testator’s state.

There are two ways that real estate owned by an out of state resident can be transferred without going through probate. The first is in the event that six years have elapsed since the deceased’s passing when a copy of the will and out state probate are used to secure a certificate of assignment to transfer the title without probate. The second, “no personal representative has been appointed in this (Wisconsin) state for the estate of any decedent who was not a resident of this state at the time of his or her death,” the county Circuit Court may appoint an executor to take control of the real estate.

If you are inheriting real estate from out of state, you will need to follow the procedures for ancillary probate in the state where the property is located. That may include hiring an attorney or traveling to probate proceedings, possibly with the named executor of the estate if that is what is required. If you are asked to be the executor to an estate, it may also be a good idea to ask in advance if the testator has real estate out of state.

To avoid putting your loved ones through ancillary probate when you pass away, you will need to engage in forward thinking by creating a living trust, a transfer on death deed, or adding the individual as a co-owner to the title. Some of these can also avoid full probate both in and out of state, depending on the in-state laws.

Madison Trust and Estate Lawyers

The estate lawyers of Krause Donovan Estate Law Partners, LLC practice law in the areas of Probate, Wills, Estate Planning, and Trusts. We assist clients in and around Madison, Wisconsin with all matters related to estate planning, trusts, and probate matters. Our dedicated attorneys will even make house calls if you are unable to come to our office.

Contact our office by calling (608) 268-5751 to schedule a consultation or use our online contact form.

How Right of Survivorship can Affect Your Estate Planning Goals

Wisconsin is one of nine states with community property laws that can have a major impact on how couples conduct their estate planning and pass on property to their heirs. The law holds that any property acquired during the course of a marriage is equally owned between spouses and in the event of a divorce, must be split 50/50. Wisconsin is one of a handful of states that take the law further to apply to probate laws.

Married couples in Wisconsin are allowed to have property as survivorship marital property, also known as community property with right of survivorship, which passes on the deceased spouse’s half of the property upon death. What this means is that when one spouse passes away, the house, cars, furniture, and other real estate automatically become the sole property of the surviving spouse.

Wisconsin Statute 766.60(5)(a) reads: “On the death of a spouse, the ownership rights of that spouse in the property vest solely in the surviving spouse by nontestamentary disposition at death.” This law was promulgated in 1986 as part of Wisconsin’s adoption of the Uniform Marital Property Act (UMPA) which sought to create more consistent spousal property laws across the country.

The law does not allow anyone to pass along community property to any other person, even if he or she attempts to expressly command so in a last will and testament, unless the parties agree otherwise in a marital property agreement. The only other exception applies to individual property acquired by either spouse before the marriage or the real property was an inheritance specifically to one person.

In cases in which real property is deeded to spouses predating their marriage, the asset may be owned in joint tenancy, where ownership passes to the other upon death, or tenancy in common, where each other’s share is transferable. While family members like spouses can inherit property in joint tenancy, only spouses enjoy the protections of community property with sole survivorship.

One of the main advantages of spouses automatically taking ownership of marital property is avoiding capital gains tax if the property is sold by the surviving spouse. Capital gains tax applies to increase in value of a property over the value at the time of purchase. For example, a piece of real estate bought for $50,000 in 1960 and sold for $250,000 today would be subject to additional taxes on the $200,000. Before signing any marital property agreement affecting one party’s rights of survivorship, the effects on capital gains tax should be taken into account.

Madison Trust and Estate Lawyers

The estate lawyers of Krause Donovan Estate Law Partners, LLC practice law in the areas of Probate, Wills, Estate Planning, and Trusts. We assist clients in and around Madison, Wisconsin with all matters related to estate planning, trusts, and probate matters. Our dedicated attorneys will even make house calls if you are unable to come to our office.

Contact our office by calling (608) 268-5751 to schedule a consultation or use our online contact form.

Create an Authorization for Final Disposition to Ensure Your Burial Wishes are Carried Out

funeralPlanning for your burial is another important part of one’s estate that can often be overlooked when it comes time to planning other aspects like creating a last will and testament, assigning an executor, or creating various types of trusts to avoid tax implications of dividing an estate. However, if you have a family or need to observe certain religious burial practices, it is vitally important that you create an Authorization for Final Disposition to ensure that your final wishes are carried out at your burial.

 

An Authorization for Final Disposition allows individuals to make advance arrangements for their funeral viewing, suggest which religious observances should be followed, and suggest a source of funds to pay for the burial. The Authorization for Final Disposition also gives instructions on what type of funeral ceremony, memorial service, graveside service, or other last rite the individual may desire and inform family members whether a burial, cremation, or other disposition or donation of the remains is desired.

 

Without a signed Authorization for Disposition letter, Wisconsin law provides a hierarchy of surviving heirs who have the authority to make decisions on final burial arrangements. Wisconsin’s order of priority for burial procedures is as follows:

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