Estate Planning Elder Law Attorney: When to Contact?

July 18, 2019

As estate planning attorneys, we understand that knowing when to contact an estate planning elder law attorney is difficult to predict. Most people don’t know the answer.

Admittedly, sometimes it can be clear when you need an estate planning elder law attorney. For example, when a loved one enters a nursing home for a long term stay, you will want to discuss options for protecting assets. You will want to review powers of attorney or trusts to ensure everything is in order. Or, when someone passes away, and there are assets that require trust administration or probate, you will want guidance on winding up the trust or probate.

However, sometimes it is not so obvious that you should contact an estate planning elder law attorney. After all, who wants to think about death, disability, or nursing homes when you are feeling good and everything is going well in life?

Below we summarize some reasons to consult with an estate planning elder law attorney. Some reasons are more obvious, but what is important to remember is that planning should be done well in advance of a life event that requires an estate planning elder law attorney. When someone is in crisis, and immediate emergency estate planning is needed, it’s often too late to accomplish the desired goals. At the very least, it is less orderly and more expensive. Avoiding crisis estate planning is always a good idea.

Ideally, every adult would have at least a basic estate plan. A basic estate plan typically will include a Last Will and Testament, Durable Power of Attorney, and a Power of Attorney for Health Care.

Young Adults May Want to Prepare a Basic Estate Plan

For a young adult with no children and little or no assets, a Last Will and Testament may not be less essential than Wisconsin powers of attorney documents. Properly prepared power of attorney documents are likely to be more important estate planning tools.

For young clients without children, significant assets, or a house, a Last Will and Testament may be of limited benefit. However, powers of attorney can be very important in the event of an accident, international travel, or a semester abroad where someone “back home” should be in a position to manage finances, transfer funds, pay bills, or undertake other financial matters that are sometimes not easily dealt with when overseas.

Moreover, with powers of attorneys in place – both a durable financial power of attorney and power of attorneySee Power of Attorney for Health Care, Financial Power of Attorney, and Durable Power of Attorney. for health care – young clients  often appoint parents or their sibling to be in charge of their health care and financial matters in the event of an accident where the young person can no longer make his or her own decisions.

When Younger Clients Need a Will

There are also times when a Last Will and Testament is essential, even for younger clients. For example when a younger person starts buying real estate such as a house that does not name beneficiaries. Or, where the natural heirs referred to as “heirs-at-law” are not the preferred probate beneficiaries in the event of death. For example a child maybe estranged from one or more of his or her parents or siblings and want to make it clear, by use of a Last Will and Testament, who he or she wants as beneficiaries as well as make it clear who is “cut out” and should not receive assets in the event of death. Often a transfer on death deed can be used to name a beneficiary on a younger persons house, such as a parent, to avoid probate and to distribute the house to the person or persons who should receive it in the event of death.

Middle Age or Older Adults Need a Suitable Estate Plan

Without exception, middle age and older adults will benefit from a proper estate plan. Your assets, family situation, and other factors will determine what type of estate plan you should have. Working with an experienced and skilled estate planning law firm will help you determine what is appropriate and cost effective.

Depending on your specific circumstances, any number of approaches may be most suitable:

• A basic estate plan may be appropriate for simple estates.
• A revocable trust estate plan may be best suited to avoid probate.
• A more complex estate plan to protect assets from a nursing home may be the right approach.
• For second marriages or those with children outside of marriage, contractual wills or marital property agreements (post nuptial agreements) may be advised.

By planning ahead while you are healthy, you get the maximum benefit and ability to protect assets, and to save money from probate fees, nursing home costs, and taxes. Proper early planning can help protect our loved ones from unnecessary complications, taxes, and fees.

Even if you already have an estate plan in place, when there has been significant asset changes, new investments, or job changes, it is important to make sure that your estate plan properly incorporates these assets.

When Children Arrive: A Plan Is a Must Have

When you have a new child, or if you already have a child or children, estate planning takes on major importance. A house, or life insurance or retirement accounts should be properly dealt with, even in the absence of significant assets.

The Benefits of Trusts for Children

A solid estate plan will make sure that your assets are used for your children, as you intend, if you were to pass away. Through a trust or a will with a trust, you can appoint a person or institution that you want to be in charge of your assets, if you pass away, for the benefit of your children. A trust can also allow the use of your assets to pay for your children’s educational expenses, health care needs, and support needs. (In a previous article, we talked about the advantages of trusts for young or minor children.)

The Costs and Risks of “No Trust” with Children

Without a proper trust or a will with a trust, and without proper beneficiaries named, your funds are not likely to be used as you would intend. For example, if a parent passes away and his or her assets go to minor children and not to a trust for the children, the children will have guardians appointed by the court. Those guardians will then control the assets.

The problems with that approach are multifold:

• It is expensive as it adds legal and court costs.
• It is possible that a less than ideal person will be placed in charge of your children and assets.
• When your child turns 18, if there are funds left, the child will receive these assets and be able to do as the child pleases. There is a risk that an 18-year-old might not make sound financial decisions.

You can place assets in a trust to be used for the child’s education, health care and support needs until the age that you select – such as 25 or 30. When your child reaches the specified age, if the child can responsibly manage the assets, the trust can distribute the remaining assets to the child.

Using a Will to Name Guardians

With a will in place, you can name who should be guardian. By designating guardians for minor children, you select who will be in charge of your child’s personal needs, such as religious, health care, living, and educational decisions. You can eliminate much family fighting over who should be in charge. You can give yourself peace of mind that the people who raise and make life decisions for your children are the people that you named.

The naming of guardians is perhaps even more important where a child is developmentally disabled, requiring a guardian beyond the age of eighteen. (We previously shared more information on naming guardians for children.)

After Marriage or Divorce

Due to Wisconsin beneficiary and estate planning laws, we highly recommend reviewing your estate plan after you get married or divorced. There are a complex set of laws that will significantly change existing beneficiary designations and estate planning documents including wills, trusts, and powers of attorney. To be clear, if you do nothing, Wisconsin law will change your estate plan for you, often in unintended ways.

A detailed review and analysis of what should be updated is important to ensure that Wisconsin laws do not adversely effect your estate plan.

Marriage and Divorce: Children Outside of That Marriage

In a marriage with children outside of the marriage, there is added urgency to create a proper estate plan. Without a proper plan, Wisconsin law will include both the new spouse and non-marital children automatically, often in ways that you did not intend.

By being proactive, you can choose who will be in charge of your affairs. You can set what will happen to your assets by creating a proper estate plan. We previously discussed divorce and marriage in a serious of articles:

• Wisconsin Last Wills and Testaments and Divorce
• Divorce and Trusts in Wisconsin
• Powers of Attorney and Divorce in Wisconsin

We’re Estate Planning Elder Law Attorneys

As experienced estate planning and elder law attorneys, we can help determine how best to plan for your future. In practice since 1958, we work to achieve your aims in the most efficient and cost effective way possible. Contact us to chat about your needs and goals.