Category: Estate Planning Basics

Avoiding Probate: The Revocable Living Trust

4/25/2016

Revocable living trusts have been a hotly debated estate planning tool. Some estate planners refuse to consider revocable living trusts for their clients’ estate plans, while others consider it essential to a complete estate plan. This brief article will look at both sides, and explain the advantages and disadvantages of revocable living trusts.

Why are revocable living trusts used?
A revocable trust allows you to avoid probate. This saves both the three to nine month wait for completion of the probate process and the following cash savings:

Probate fees of $200 per every $100,000 of property you own.
Attorney fees of approximately $1500 to $4000 for handling an uncontested probate.
Double the above costs in the event that you have property in more than one state. Approximately an additional $1500 to $5000

A revocable trust allows you to choose a person to manage your finances.

In the event that you are unable to manage your finances, a revocable trust sets up a method for you to pass control to a person you choose.

A revocable trust has no tax impact while you manage the trust.

The revocable trust is set up as what is called a grantor trust. This means that you do not have to concern yourself with any additional tax documentation. You can take your tax credits or deductions just as you always have. In this way, the trust is simple to manage.

After you die, your revocable trust can be used to shelter your children’s inheritance from their creditors and spouse.

Often revocable trusts are set up to distribute all of your property and terminate after you die. However, you may also set up the trust to continue to hold money for your children under a spendthrift provision, which protects your child’s inheritance against his or her creditors.

What is a Revocable Living Trust?
What is a Trust?--A trust is a written agreement that names one person, the trustee, to be responsible for managing property for the benefit of others (the beneficiaries.) In general, a revocable living trust allows you to manage your money as trustee, and receive income and principal (those assets that you placed in the trust) for life. The remainder then passes to your beneficiaries.

What is a “revocable” Trust?--A revocable trust allows the creator (the grantor) to change or end the trust at any time and for any reason.

What is a “living” Trust?--A living trust is a trust created and funded during your lifetime. You may also create a trust in your will, to be funded after your death. This is known as a testamentary trust.

What differs between “living” and “testamentary” trusts?--The main difference between a living trust and a testamentary trust is whether the assets go through probate. The primary purpose of a living trust is probate avoidance.

Probate:
What is probate?--Probate is a court-supervised process transferring ownership of a deceased individual’s (decedent’s) assets.

What are the advantages of probate?--Probate has two main advantages:

Probate ends creditors’ claims. If a creditor fails to make a claim against the property within the allotted three to four months after receiving notice, they waive the right to any claim against the property. (This result may also be achieved by providing notice with the trust, but you will not be forced to do so.)
Probate creates proof of the value of property at date of death. Inherited property has a tax basis equal to the value of the property the day the decedent died. Therefore, when inherited property is sold, taxes are only due on the sales price above the value that the property had on the date of death. Probate serves as a means to prove the value of the property as of the date of death for this tax purpose.

What are the disadvantages of probate?--Probate has two main disadvantages:

Cost— Probate costs include a filing fee of 0.2% of the value of the total probate property, attorney fees (which can run in the $4000 range,) and personal representative fees (if your personal representative chooses to ask for a fee.)
Time—Distributions may only be made from the probate estate after the three to four month waiting period for creditor claims has elapsed. The family may only receive money before this time by court order.

Revocable Trust Disadvantages:
Are there any disadvantages to a revocable trust?—A revocable trust has several disadvantages:

If you ever appoint someone other than yourself or your spouse as trustee of the trust, the trust will be required to file a yearly informational report to the IRS.
A revocable trust needs maintenance. If you receive assets at a future date, you will have to be sure to put the assets in the revocable trust, otherwise you will not avoid probate. This can be accomplished on your own, or with simple guidance from an attorney. It may include assuring that any deeds for property are properly assigned to the trust and not to yourselves.

Should I have a revocable trust?--To determine whether you should have a revocable trust, you should consider both the advantages and disadvantages as they apply to your own scenario. For assistance with determining whether a revocable living trust is right for you, contact Attorney Derrick Heller-Neal via phone at (262)902-0595 or by email [email protected] to schedule a consultation.

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As you Will: What is a Will?

4/16/2016

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Wills
The most commonly-known type of document used in estate planning, the will may seem straightforward, but it has a complex interaction with the various other tools used in estate planning. Read on to learn more about the will and how it works.

What is a will?: A will is a document that instructs the Probate court on the following:

Your personal representative, who will be responsible for managing and distributing your estate.
What and who will receive assets that pass through probate. (Including both individuals and charities)
Who will raise your children if they are still minors and your spouse is not available to raise them.
How individuals will receive their share of assets. (Either outright, or in trust)

What does a will not do?: A will does not do the following:

Deal with assets that do not pass through probate. It does not select how they should be managed or to whom they should go. Such assets commonly include: life insurance, bank accounts held in certain forms of title, real estate held in certain forms of title, retirement accounts, stock portfolios, bonds, and other forms of property with beneficiary designations.
Deal with your healthcare decision-making. (This is handled by either a healthcare power of attorney or what is known as a living will)
Help you to avoid probate. (This is mainly accomplished through use of a revocable trust)

What happens if I don’t have a will?: Lack of a will is covered by Wisconsin’s intestacy law, which has the following impact:

Your property will be distributed to your spouse or domestic partner, unless you have children from outside of the current marriage, in which case your spouse or domestic partner would get half of the property and all of your children would receive the other half. If your spouse predeceases you, your children will receive your property. If you do not have a spouse or descendants, your property would go to your parents, then siblings, then cousins, then grandparents and your grandparent’s descendants.
Any share of property given to a child will likely be held in a Uniform Transfers to Minors Account, to be used for that child’s benefit. It is not possible to keep a single account to be given to the children as their needs arise.
The court will choose your child’s guardian. This makes it more likely that such guardianship will be supervised by the court, including requiring that the guardian make annual accountings to the court.
The court will also choose a personal representative for you, and make them responsible for the management and distribution of your estate.

While a will may not be necessary for everyone, it is drastically important if you have children or if you want to have control over to whom and how your assets are distributed.
For the most up-to-date information about wills and estate planning, contact Elder Law Attorney Derrick Heller-Neal at (262) 902-0595 or email: [email protected] to set up a free consultation.

Derrick Heller-Neal is an Estate Planning and Elder Law lawyer located in Racine, Wisconsin.

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ESTATE PLANNING FOR SECOND MARRIAGES AND BLENDED FAMILIES

3/31/2016

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ESTATE PLANNING FOR SECOND MARRIAGES AND BLENDED FAMILIES

I am getting remarried and I have children from before the marriage, do I need planning?: Yes, in a second marriage, if you want all of your money to go to your spouse or if you want to allow your spouse to remain in your home, but you want to make sure your children get the home after your spouse is deceased, an estate plan is necessary.

Family Hike- woodleywonderworks -CC2.0

If I have a child from a previous marriage why would I need a will?: In Wisconsin, if you pass away without a will, there are statutes that dictate who will receive your property. In the event that you have a child that is not also your spouse’s child, half of your property would go to your spouse and the other half would go to your child or children. If you want your spouse to have more than half of your property, then you must indicate that desire in a will.
I want my spouse to be able to stay in our home for life, and then have the home go to my children, how do I do this?: A QTIP trust allows you to leave an asset that you own, such as your home, to your spouse for use during his or her lifetime, and then pass on the property to your children. This process will be discussed further in a future article.

What happens to property that is only in my name?: Wisconsin is a marital property state. That is, any property obtained during the marriage (while in Wisconsin) is presumed to be co-owned with your spouse. This is true even if these assets are titled in the name of just one spouse. However, property from before the marriage, titled in the name of only one spouse, will likely be considered the sole property of that spouse, so long as the property is not co-mingled with the other spouse’s property. It is important, therefore, to consider how you would want your property to pass, and have an attorney examine your beneficiary designations and execute a marital property agreement to ensure that your property will pass in that manner.

What if we want to keep our property separate, to ensure that we can leave our property to our children?: This requires an opt-out marital property agreement. Under an opt-out marital property agreement, all of your assets are divided based on how they are titled. If they are titled in your name, they are your individual property to bequeath as you desire. Similarly, if they are titled in your spouse’s name, they are your spouse’s individual property, to bequeath as your spouse desires.

Is there any down-side to an opt-out marital property agreement?: The downside of the opt-out marital property agreement is the loss of a tax-friendly provision which allows for a full adjustment in basis on all marital property when one spouse dies. Since your spouse’s property will not be marital property, that property will not receive a new basis like it would when all property is considered marital property.

What if we want to ensure that all of our property goes to our spouse?: This situation requires the opposite of the opt-out marital property agreement described above. An opt-in marital property agreement will allow all of your property, no matter how titled, to be considered to be marital property. This ensures that half of all property will be considered as owned by each spouse, and any surviving spouse can thereby get a new basis in all property on the death of the first spouse to die. Further, it is important to have a new will and/or revocable trust created to assure that your spouse will receive your property when you die.

This has just been a brief glimpse of the estate planning that many individuals need. For more information, please feel free to call Attorney Heller-Neal at (262) 902-0595 or email: [email protected].

Derrick Heller-Neal is a solo lawyer located in Racine, Wisconsin.

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Protecting yourself and your children with Estate Planning/The Children's Trust

3/22/2016

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ESTATE PLANNING FOR INDIVIDUALS WITH CHILDREN
I have just had a child/ I have children, what estate planning do I need to do?--When you have a child, it is of the greatest importance to have an estate plan. A good estate plan will help to protect the well-being of both you and your child. This article focuses on the use of different estate planning tools as they specifically relate to your child. For most individuals with a child, a basic estate plan should include a will, testamentary trust, power of attorney for finances, power of attorney for healthcare, and an authorization for final disposition. If you have more than one child, even if you already created an estate plan when you had your first child, you should consider having the estate plan updated to include a children’s trust, which keeps your money in a single fund to be used for any child's care as needs arise.

THE CHILDREN’S TRUST

Why have a testamentary children’s trust?--A trust serves three purposes:

it allows you to choose a person (the “trustee”)who you want to manage your child’s property;
it allows you to treat your children fairly with the money you leave them; and
it allows you to choose when your child is old enough to receive their inheritance.

How does a trust treat children fairly?--A trust allows your money to be used on your children in exactly the same manner as it would if you were alive. As parents, we do not separate each child’s money into shares, which are used until the child runs out of money. We give the money to the children as the need arises. A single-pot trust acts in the same way. In a single-pot trust, the inheritance is kept as a single fund, distributed to each child as the need arises. It may later be broken into individual trusts for each child after they exit high school or college or reach an age you determine.

What is a trust?--A trust is a relationship. You choose an individual (the “trustee”) to manage the money and property you designate, and distribute the money and property to an individual (the “beneficiary”) as you dictate in the trust document. The trust document itself sets out the boundaries of the relationship, including the property that is a part of the trust, who the trust is benefiting, the times and purposes for which the funds in the trust should be spent, and when the trust will end.

The Will

What is a Will?--A will is a legal document that indicates your desires regarding how your property and dependents should be taken care of after your death.

Do I need a will?--Yes, a will accomplishes three main purposes:

it allows you to name a guardian for your children,
it allows you to dictate whom should receive your property after you die, and
it allows you to appoint a person (the “personal representative”) who will ensure that your desires are achieved.

Who will take care of my child if I die?--Who takes care of your child in the event of your death depends on whether you have elected a guardian for your child under your will. If you fail to elect a guardian under your will, the court will appoint an individual to care for your child.

What if I elect a guardian under my will?--An election of an individual for guardian does not guarantee that person will be appointed guardian. While Wisconsin courts generally follow the election made in the will, they will deviate in the following events:

if the person elected in the will is not willing to become guardian for the child, the court will be forced to select a different guardian;
if the court determines that appointing the individual elected in the will as guardian is not in the best interests of your child, the court will select a different guardian; and
if the biological parent of the child is still alive, the court will likely disregard any guardian listed in the will and give the child to its biological parent.

What if I know someone who would be amazing at raising my child, but is not good with money?--It is possible to appoint more than one person as a guardian of your child. There are two types of guardians: the guardian of the person and the guardian of the estate. The guardian of the person is effectively the substitute parent for the child, making day-to-day child-raising decisions. The guardian of the estate manages and controls the money that you leave to your child. This way you can choose the best person to raise your child, and leave the money management to someone more suited to that task.

THE POWER OF ATTORNEY DOCUMENTS
What is a Power of Attorney for Finances?--A Power of Attorney for Finances and Property is a document in which you (the “principal”) name another individual (the "agent") to manage your finances and property. You determine the money and property you want the agent to have authority over, as well as the authority you want the agent to have. The authority can be broad or specific, depending on your preference. A power of attorney for finances may be “durable,” meaning that your agent may manage your finances in the event of incapacity or incompetence.

What is a Power of Attorney for Healthcare?--A Power of Attorney for Healthcare is a different document, in which you (the “principal”) name another individual (the “agent”) to make healthcare decisions for you if you lack capacity to do so yourself. You may indicate your expectations for your end-of-life care or nursing home care within the document. A Power of Attorney for Healthcare or a guardianship is required if you want to allow someone the authority to place you in a nursing home or other long-term-care facility.

Why have these documents?--If you are injured, and unable to say what you want, the only legal method available for you to express your wishes is to explicitly appoint someone who will be responsible for seeing that your desires are carried out. Therefore, whether you are single or married, poor or rich, these documents are necessary for everyone.

THE AUTHORIZATION FOR FINAL DISPOSITION

Do I really need to think about my funeral?--No, but is it really fair to leave your loved-ones to plan, wondering whether they are doing what you would have wanted? Your death will be a hard time for your family. Doing some of the work yourself by writing down an outline of how you would like your funeral to be held can help ease the burden your family will feel. An authorization for final disposition is a document that can help put these plans into action.

What is the authorization for final disposition?--An authorization for final disposition allows you to appoint an individual who will be responsible for taking care of arrangements for your funeral. The document allows you to indicate whether you want to be cremated or not, whether you want any religious activities performed, what the funeral should include, and what funds should be used to pay for the funeral.

Conclusion

The documents above are only some of the estate planning tools that are used to plan for individuals with children. Other tools may include spendthrift trusts (in the event you have a child that cannot manage their money), asset protection trusts for individuals with disabilities (to ensure that they do not lose benefits), and additional planning for blended families. For more information about these issues, be sure to check back on March 28th, when we will discuss these situations.

This has just been a brief glimpse of the estate planning that many individuals with children need. For more information, please feel free to call Attorney Heller-Neal at (262) 902-0595 or email: [email protected].

Derrick Heller-Neal is a solo lawyer located in Racine, Wisconsin.

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Understanding the Power of Attorney for Finances

3/12/2016

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Power of Attorney for Finances: A Brief Overview

What is a power of attorney for finances?: A Power of Attorney for Finances and Property is a document in which you (the “principal”) name another individual (the "agent") to manage your finances and property. You determine the money and property you want the agent to have authority over, as well as the authority you want the agent to have.
The Dark Side of the Money- zeevveez -CC2.0

The authority can be broad or specific, depending on your preference. A power of attorney for finances may be “durable,” meaning that your agent may manage your finances in the event of incapacity or incompetence.

Why have a power of attorney for finances?: A Durable Power of Attorney for finances allows your agent to manage your finances even if you become incapacitated or incompetent.

Without a Durable Power of Attorney, your family may need to seek a guardianship in order to manage your money; apply for work-related disability, Social Security disability, or other benefits; access or change your retirement plan; file insurance claims or appeal denials; sign your tax forms; sell your home and help you move somewhere else; or hire accountants, lawyers, or other professionals on your behalf. Appointing a guardian is time consuming and expensive. The family must hire a lawyer who will arrange for a court hearing. A physician must provide evidence that you cannot handle your own affairs. And, if you are physically able, you must go to the courthouse to hear the testimony that you are incompetent.

When does the agent’s authority begin?: You may choose whether your agent begins managing your property immediately or at some later date or event, such as when you become incapacitated.

What is “incapacity?”: Whether you are incapacitated is determined in the following manner:

A physician or psychologist’s finding that you have an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance, such that you are unable to manage your property or finances.
A judge, attorney, or appropriate government official’s finding that you are missing, detained, or are outside of the United States and unable to return.
You may provide your own method by choosing a different individual who will decide whether you are incapacitated, and by creating your own definition of incapacity.

Does this prevent me from controlling my money?: The power of attorney document takes away none of your rights to control your property and finances. Your money is still your money. The document merely gives the agent permission to help manage your finances in a way that is consistent with your best interest.

When does the Power of Attorney end?: If at any time you are dissatisfied with your agent’s performance of their duties, you may revoke the power of attorney document. To revoke you must sign and date a document expressing your intent to revoke your power of attorney for finances. This document must then be given to your agent and your financial institutions to let them know that you have revoked your power of attorney.

There are many more decisions relating to the power of attorney for finances than are written here. If you have any questions about whether to create a power of attorney for finances, the agent’s duties, or your rights, please do not hesitate to call Attorney Heller-Neal at (262)902-0595, or via email: [email protected].

For more basic information about the power of attorney for finances in Wisconsin, please see the Wisconsin Bar’s Q and A.

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How can an estate plan help me avoid probate?

3/2/2016

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Please see the articles: "Basics of the Probate Process" and "The Advantages and Disadvantages of the Probate Process" for information about what costs and procedures are involved in the probate process.

An estate plan uses the following methods to help avoid probate: Beneficiary Designations, Transfer on Death and Pay on Death designations, Revocable trusts, and Marital Property Agreements

Beneficiary Designations- Many different types of assets allow for nonprobate transfer through designating whom should receive the asset when you die, otherwise known as a beneficiary. As estate planning begins, it is important to review all assets where you can pick a beneficiary to be certain that the beneficiary chosen matches with your estate planning goal. This is doubly important with retirement accounts, which can have significant tax implications if beneficiary designations are not chosen appropriately.

Types of assets that commonly have beneficiary designations:.
1. Life Insurance
2. Retirement Plans
3. Stocks, Bonds, Mutual Funds, and Brokerage Accounts
4. Bank Accounts and Certificates of Deposit

Transfer on Death and Pay on Death- Transfer on Death (TOD) and Pay on Death (POD) are designations that may be placed on Bank accounts, Certificates of Deposit, Stocks, Bonds, Mutual Funds, Brokerage Accounts, and Real Estate to pass those assets outside of probate by designating a beneficiary for the asset. The asset remains yours to control and use, but passes to the chosen beneficiary when you die. To this end it is not subject to the beneficiary’s creditors during your lifetime, unlike when joint tenancy or joint accounts are used.

Joint Tenancy and Joint Accounts- Joint tenancy and Joint accounts are both types of property ownership in which both individuals have complete control of the property. This type of property ownership also allows the asset or account to pass outside of probate at the death of one of the joint owners to the other owner. However, unlike with transfer on death or pay on death designations, your co-owner has the full ability to use the property for himself or herself, and the property is subject to any creditors your co-owner may have.

Revocable Trusts- A revocable trust is a written agreement naming an individual (trustee) who will be responsible for managing the property in the trust for the benefit of others (beneficiaries.) Generally, you maintain control over the assets you place in the revocable trust. You may use the assets in any way you choose at whatever time you choose. In the event that you pass away, a person you choose in advance will become trustee and will have responsibility for managing and distributing the property from the trust to the remaining beneficiaries. This allows a seamless transition that has the added benefit of avoiding probate.

Marital Property Agreement- A marital property agreement allows a couple to opt-in or opt-out of Wisconsin’s marital property laws by specifically designating what assets are considered to be marital and what assets are individual. The marital property agreement has the added benefit of allowing transfers of marital property between spouses at the death of one spouse outside of probate through what is called a “Washington Will provision.” However, as is true with much of estate planning, a marital property agreement should be reexamined if either spouse may soon require long-term care.

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The Advantages and Disadvantages of Probate

2/28/2016

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While I generally suggest that clients seek to avoid probate, it is important that they understand that probate avoidance is not always the right strategy. The following is a brief overview of the advantages and disadvantages to probate, to help you determine what is best in your situation.

Advantages:

Probate gives a court-accepted valuation of all of the decedent’s property.
1. Placing a value on property at the time of the death of an individual can be extremely important for tax reasons. When an individual dies and passes property on to a beneficiary, the tax basis in that property is raised to whatever the property’s value would be on the day the decedent died. This is important for calculating taxes when the property is sold. In general, tax is collected on income, or in this case, ‘gains.’ That is to say, on the difference between the tax basis and the sales price. A higher basis means less gain, which means less tax. By creating a court-accepted valuation, probate gives the beneficiaries a clear number to use for basis when they go to sell the asset years in the future. Without this valuation, the beneficiaries must somehow show what the value was on the decedent’s date of death. This can be challenging if the beneficiary does not get the property valued.
2. Examples of property that may need valuation: Real estate, if the assessed value seems too low; closely held businesses; collectibles; and other hard to value assets.
Probate sets a timer on all claims against the estate.
1. Most claimants have a limit of three months to bring a claim against the estate. However, it is the personal representative’s (the person who you pick to handle your probate) duty to make sure that all creditors are informed about your probate. This is not a process designed to dodge claims. The probate process is an upfront way to make sure that all claims have been paid before distributing property.
2. Due to changes in the Wisconsin Estate Recovery procedures, it is currently best to go through probate in order to deal with claims from the state, rather than to deal with the state outside of probate. The state has failed to put any procedures in place for contesting their claim outside of probate. The revocable trusts set up by Heller-Neal Law Offices, LLC, take this into account, and allow distribution to the estate in the event of any claims by the Estate Recovery program.

Disadvantages:

Probate takes time.
1. Probate takes a minimum of approximately four months to complete. Often, probate can take from four to nine months to complete, due to time spent getting the signatures of heirs and beneficiaries, having hearings, dealing with creditors, inventorying and accounting for the estate, and distributing assets. During the initial three to four months, the assets are not able to be distributed, so as to give creditors an opportunity to assert their claims. Therefore, not only will someone need to manage your estate for four to nine months, but your beneficiaries do not even get to see any money from your estate during much of that time.
Probate can be costly.
1. Probate filing fees of $200 per every $100,000 of property you own.
2. Attorney fees of approximately $1500 to $4000 for handling an uncontested probate.
3. Double the above costs in the event that you have property in more than one state, as each state will require its own probate. Approximately an additional $1500 to $5000
Probate is not private.
1. Any assets that pass through probate are a part of the public record. Further, all heirs and beneficiaries of your estate are given notice of the estate and the assets in the estate. This includes exactly how much is given to whom. Passing assets through a trust or other form of nonprobate transfer avoids the need to give this information to everyone. This results in greater privacy.

Heller-Neal Law Offices can help you with your probate avoidance and asset protection needs. Contact Heller-Neal Law Offices today for a free consultation. Attorney Heller-Neal can be contacted via phone at (262)902-0595 or via email at [email protected] .

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Costs saved through Estate Planning and Title 19 Planning

1/27/2016

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Estate Planning is most often done with the goal of making our deaths or incapacity easier on our families and loved ones by having a plan in place ahead of time.

Estate planning also helps to defray costs associated with probate, guardianships, and long-term care.

Savings by avoiding probate:

Probate fees of $200 per every $100,000 of property you own.
Attorney fees of approximately $1500 to $4000 for handling an uncontested probate.
Double the above costs in the event that you have property in more than one state. Approximately an additional $1500 to $5000

Savings by avoiding a guardianship:

Approximately $2000 in Attorney fees for an uncontested proceeding.
1. Fees may be higher for contested proceedings, as these often require the services of up to three different attorneys.
$1000 to $2000 in attorney and accounting fees per year to maintain the guardianship.
1. Courts require that guardians make annual accountings to the court.

Savings by planning in light of long-term care:

An Elder law attorney helps save tens of thousands of dollars on average with adequate Title 19/Medicaid planning.
1. Nursing home costs in Wisconsin are approximately $100,000 per year. Planning in advance has only been made more important with changes made to Wisconsin’s Medicaid laws, which try to take money from the estate of a spouse who was not in a nursing home for costs incurred by any spouse on Medicaid.

The above provisions are estimated savings that apply to the majority of individuals. Each client, however, may have their own special needs that may be addressed through estate planning. Call to make a meeting and see what Estate Planning may be able to do for you. For more information, please feel free to call Attorney Heller-Neal at (262) 902-0595 or email: [email protected].

Derrick Heller-Neal is a solo lawyer located in Racine, Wisconsin.

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Avoiding Probate: The Revocable Living Trust

As you Will: What is a Will?

ESTATE PLANNING FOR SECOND MARRIAGES AND BLENDED FAMILIES

Protecting yourself and your children with Estate Planning/The Children's Trust

Understanding the Power of Attorney for Finances

How can an estate plan help me avoid probate?

The Advantages and Disadvantages of Probate

Costs saved through Estate Planning and Title 19 Planning

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