Estate Planning and Elder Law FAQs

Will I Have to Pay Estate Taxes?

Probably not. The lifetime estate and gift tax exemption, as of this writing, is $5.6 million for an individual and $11.2 million dollars for a married couple. That means only a very small percentage of people whose estates are worth more than the amount of their exemption will pay estate tax. However, many estates still have to pay income tax on income they receive. Estate income tax and estate tax are two separate things.

What is the Difference Between a Living Will and a Living Trust?

A "living will" is a statement in writing that details your wishes regarding your medical treatment in circumstances in which you are no longer able to give informed consent to treatment. Officially, it is called a declaration to physicians, but it is commonly referred to as a "living will". This leads to confusion because it is not a will at all, in that it has nothing to do with your assets (property), and because "living will" sounds similar to living trust. A living trust is a type of revocable trust that is an estate planning tool that allows you to continue to control, use, and enjoy assets you've placed in the trust during your life, and then for a successor trustee to manage and distribute trust assets to your named beneficiaries after your death. A primary advantage of a living trust is that assets placed in it avoid probate.

What is the Difference Between a Living Will and a Health Care Power of Attorney?

While both documents concern your wishes for medical care (or withdrawal of care) when you can no longer give informed consent, a living will, or declaration to physicians, is limited to the withholding or withdrawal of life-sustaining medical procedures and feeding tubes if you have a terminal condition that is incurable and would cause your death imminently, or if you are in a persistent vegetative state that is complete and irreversible.

A health care power of attorney gives someone you trust the authority to make medical decisions on your behalf if you are incapacitated. A living will can offer guidance to the person you name as your power of attorney for health care decisions, which is why we offer a document that combines a health care power of attorney with a living will. If you are able to give informed consent, rest assured that you remain in control of your health care decisions. However, if you are unable to give informed consent and you have both a health care power of attorney and a living will, the provisions of your power of attorney will supersede any conflicting provisions of your living will. In addition to our standard health care power of attorney and living will document, we offer documents that are tailored to specific faiths, such as Catholic, Lutheran, and Jehovah's Witnesses.

How Do I Name a Guardian for My Children if Something Happens to Me?

You can name a guardian for your minor children in your will. Of course, you should discuss this in advance with the person you have chosen to make sure they are willing to serve in this capacity. It is also a good idea to name a successor guardian in case your first choice is no longer able and willing to serve as guardian when needed.

Can I Prepare My Own Will?

Well, yes, just as you can cut your own hair—in other words, there is nothing stopping you, but the outcome might not be what you wished! There is nothing in Wisconsin law that requires you to have your will prepared by an attorney. However, if you want to make sure that your will is valid, that it complies with the law and does exactly what you intend it to, your best bet is to work with an attorney who is familiar with Wisconsin estate planning law. If you tell your attorney what you are trying to accomplish, she may also be able to recommend other estate planning tools, such as trusts and transfer-on-death deeds, that will be better suited to accomplish your estate planning goals.

If your will is unclear, incomplete or invalid, your heirs may end up fighting, in and out of court. Not only will you not have achieved your estate planning goals, you may inadvertently cause family rifts that might never heal. The relatively small cost of having an experienced professional draw up your will is almost always worth it.

How Do I Protect Any Money My Children May Receive While They Are Young?

To the extent your minor children receive any money while you are alive, as their parent, you would have authority to manage it for them. If you are worried that you might die while your children are still minors, there are a few things you can do. Probably the best is to create a trust that will receive and manage their assets until they are legally capable of doing so, or even longer; you can set the terms of the trust, including when and under what circumstances distributions are made. The two most common ways of creating a trust for your minor children are to do it in your will or living trust.

Gifts to children can also be made under the Wisconsin Uniform Transfers to Minors Act (UTMA). The custodian of an UTMA account acts as a fiduciary (someone who manages account assets for the child's benefit) and is authorized to collect, hold, manage, and invest a minor's property. Depending on the source of the money that was transferred to your child's UTMA account, your child will assume control of the account from the custodian at age 18 or 21.

If my Spouse Has to Go Into a Nursing Home Will I Lose All of My Assets and Income?

This is a real worry for a lot of people; nursing home care is increasingly expensive, and a significant percentage of people do need long-term or nursing home care at some point in their lives. It may ease your mind to know that if you are still living independently, as the "community spouse", you are entitled to keep a certain amount of assets and income. However, there are some additional things you can do to legally protect more of your assets and income and to help your spouse qualify for Medical Assistance (as Medicaid is called in Wisconsin), sooner. (Medicare does not pay for nursing home care except in very limited circumstances.)

There is a right way and a wrong way to go about this, and the government may delay or withhold benefits from your spouse if it believes you have unlawfully transferred assets in order to qualify for benefits. Whether you are simply planning for future possibilities, or your spouse is already in a nursing home, this type of planning is something you definitely need an experienced Wisconsin elder law attorney's help with.

What is the "Look-Back" Period for Medical Assistance (Medicaid)?

Many people need the help of Medical Assistance (as Medicaid is called in Wisconsin), to pay for nursing home care for a loved one, as few people have the resources to pay out-of-pocket for such expensive care for very long. There are asset and income limits that must be met in order to qualify for Medical Assistance benefits. Some people transfer money or assets away to adult children or other loved ones in an effort to keep from needing to "spend down" assets to qualify for Medical Assistance.

To prevent what the government considers fraudulent transfers, there is a five year "look-back" from the time of an application for benefits. Any transfers of assets in that time for less than their fair market value (such as deeding your house to your adult child for a dollar) are suspect and may result in the delay or denial of benefits. To safeguard benefits without running afoul of the look-back period, consult an experienced elder law attorney.

If I Leave Money to a Disabled Child Will it Have to Go to the Government?

Not if you plan properly. The creation of a special needs trust (also known as a supplemental needs trust) can allow you to leave money for a child with special needs or other disabled loved one without causing them to have to spend those assets for their care before qualifying for government benefits. This type of trust is specially designed to let disabled individuals keep trust assets while also getting the government assistance they need.

If I Have Powers of Attorney Do I Need a Guardianship?

If you have powers of attorney in place regarding your financial and health care needs, you should not need a guardianship. Your agent(s) under the powers of attorney can seamlessly step into your shoes and make decisions for you in the event you become incapacitated. A guardianship, on the other hand, requires your loved ones to petition the court to have the power to make those decisions. You can avoid the need for guardianship by drawing up powers of attorney.

If you have more questions about estate planning, elder law, or your particular situation, we invite you to contact our law office.

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