September 12, 2019
In the USA, estate planning laws are made by each state. Wisconsin is no exception, and has very unique estate planning laws and statutes. As such, everyone moving the State of Wisconsin would do well to seriously consider how Wisconsin’s laws might effect their existing estate plans.
Do I Discard My Existing Estate Plan After a Move to Wisconsin?
We review a lot of estate plans for people moving to Wisconsin for the first time or moving back to Wisconsin after living in another state. Since estate planning laws vary from state to state, it seems logical that you might need to start over after moving to Wisconsin. However, the answer is not so simple. As you will see, an estate plan typically does not have to be completely redrafted.
Give Yourself Peace of Mind
A properly crafted estate plan can give you peace of mind, knowing your assets and family are well protected. Our estate planning lawyers will help you get there.
The Bad News from Inexperienced Lawyers
Some inexperienced attorneys believe that a new estate plan is needed when moving to Wisconsin. They may state that a new estate plan is needed to avoid the difficulty of reviewing an existing estate plan.
Worse, some attorneys are not knowledgeable and experienced enough to understand the interaction of Wisconsin laws on existing trusts, wills, powers of attorneys, and other key estate planning tools.
Finally, some attorneys that rely on a “systems” boiler plate approach to estate planning may not have the skills to review an out-of-state estate plan. Those lawyers may not know how to update only the aspects of the estate planning that need adjusting due to Wisconsin law.
Watch out for inexperienced attorneys who find is easier to always replace an existing estate plan with a new estate plan only due to a move to Wisconsin. That will cost you more money without necessarily delivering a more robust estate plan.
The Good News: We’re Experienced Estate Planning Attorneys
If you have an existing estate plan and move to Wisconsin, it is unlikely that you need to start from scratch and completely redo your estate plan. In practice since 1958, our firm has been focused on estate planning law for more than 60 years. We never assume that you need a new estate plan just because you moved to Wisconsin.
However, it is a good time to take care of the small details and technical items that might need to be updated or tweaked. It is also worth reviewing your assets and newly acquired real estate, to see how your assets interact with your estate plan. Your move is also an opportunity to review your estate plan to determine if any other changes are required to meet your estate planning goals due to asset, law or family changes.
Wisconsin’s Unique Estate Planning Laws
Wisconsin is the only state with a detailed set of property laws for married persons known as “Wisconsin’s marital property law”. Though it is a unique set of laws, Wisconsin’s martial property law (as set out in Chapter 766 of the Wisconsin Code) draws on other “community property” laws from states such as Arizona, California, Texas, and Washington, and others. Although Wisconsin developed these marital property laws, they have much in common with community property states.
We want to highlight that even with these martial property laws, folks moving to Wisconsin from a non-community property state, still might not require a complete redrafting of existing estate plans. It’s best to speak with our lawyers before you start from scratch.
If you’re married and moving to Wisconsin, we advise reviewing your estate plan in light of Wisconsin’s marital property law. If you have an existing trust, we would want to add a very helpful non-probate funding marital property document that can assist in avoiding probate upon death.
We also may want to make sure that certain assets are treated favorably for capital gain step-up purposes on the death of a first spouse, which is allowed under marital property and community property laws. (There are other reasons for an occasional estate plan checkup, as we discussed in an earlier article.)
Last Will and Testament
Generally, a will executed in another state will be valid in Wisconsin if it was valid in the estate where the will was created. We normally do not need to update a will created in another state, simply because of a move to Wisconsin.
A review of your last will and testament would be part of any overall estate plan review to make sure it still best accomplishes your current estate planning wishes. In addition, depending upon the family dynamics, it may be advantageous to update the executor (in Wisconsin referred to as the personal representative) if your currently named executor or personal representative lives out of state.
If probate is anticipated and is not to be avoided, having a personal representative residing in Wisconsin can avoid costly surety bond requirements during the probate process.
While a detailed review by an estate planning attorney to determine if it complies with Wisconsin law is recommended, normally a revocable trust does not need to be re-drafted due to a move to Wisconsin..
If you are moving from a non-community property state, adjustments maybe needed to your estate plan to ensure that it operates smoothly. The estate plan should take advantage of the marital property law to help avoid capital gains taxes upon the death of the first spouse, and to avoid probate on the first or second spouse to pass.
If moving from a non-community property state, married persons may each have their own trusts. These should be reviewed by an experienced estate planning lawyer to discern the advantages and disadvantages of a Wisconsin joint trust.
Durable Powers of Attorney
We normally do not need to update durable power of attorney documents if they are well drafted and meet the current needs of the clients. We do like to review them to make sure that agents do not need to be updated due to the move and to make sure that they are comprehensive and well written.
Power of Attorney for Heath Care
Unlike the documents mentioned above, we strongly suggest establishing new Wisconsin Power of Attorney for Health Care document as an advance health care directive when moving to Wisconsin. Advance health care directive statutes vary significantly from state-to-state. Wisconsin is no exception.
Wisconsin has a unique advance directive statute relating to health care power of attorney requirements. For example, if you were not able to handle your health care, and your non-Wisconsin advance health care directive did not specifically authorize your health care agent to sign for entry into an assisted living or nursing home, your agent would be required to obtain a guardianship from a court. The process of obtaining a guardianship takes time and money. Thus, creating new Wisconsin Power of Attorney for Heath Care documents is an important estate planning update when moving to Wisconsin.
Moreover, you may want to update your health care agents to name someone who lives in closer to you. Although having the right person appointed as your health care agent is more important than having a local person appointed, having the right local person for health care decisions can be helpful.
Moving to a new state is always a good time to review your assets and how they interact with your estate plan. Any detailed review should consider some key questions:
- Does real estate need to be transferred to a trust?
- Do old or new bank accounts need to be included in a trust plan or name beneficiaries?
- Do your current assets and new accounts function and work property with your estate plan?
Our experienced estate planning attorneys have been helping families moving to Wisconsin ensure that their respective estate plans are in keeping with Wisconsin’s estate planning law.
We’re Here to Help
If you’re in the process of moving to Wisconsin, or if you’ve recently move to the state, we invite you to contact our firm for a review of your estate planning documents. We would be delighted to schedule a time to meet with you and consider your needs.