- Last Will and Testament
Perhaps the most commonly known document. A person’s Last Will and Testament is the final direction for all belongings and responsibilities (children, pets, debts, etc.). A will is authenticated and followed by a process known as “Probate.” Probate proceedings are a matter of public record, meaning that a person’s will becomes public record once it is filed. Some states allow for handwritten will, or holographic will, but WISCONSIN IS NOT ONE OF THOSE STATES!
2. Letter to Personal Representative for Specific Property Gifts
Many wills have a provision allowing the testator (the person who writes the will) to specifically give out personal property in a separate document. This will typically take the form of a letter to the personal representative. The document should specify the property intended to be given away (for example “My collector’s edition 1980’s Empire Strikes Back tin lunchbox”) and to whom the property is to given. This letter should be signed by the Testator and dated, but it can still be effective if it is signed and dated after the will.
A trust is a document where a grantor (the person giving the asset) gives money to trustee (the person who manages the asset) for a beneficiary (the person receiving the benefit asset). A trust may distribute assets while the grantor is alive or dead and is not subject to probate. Trusts are also an effective way of placing conditions on inheriting or receiving property from the grantor. There are two basic forms of trust, a revocable trust and an irrevocable trust.
4. Marital Property Agreement
Wisconsin is a marital property state, meaning that married couples could have confusion over whether a piece of property is owned together or individually. A martial property agreement can streamline this process and clarify which items are individual property and which items are martial property.
5. Beneficiary Designations
Payment designations on life insurance policies, retirement accounts, bank accounts, etc. These designations take precedence over a will and are not subject to probate (however they may be subject to the estate tax). Wisconsin also has a similar procedure for property called a Transfer On Death or TOD.
6. Power of Attorney (Durable Power of Attorney)
Power of Attorney (POA) documents allow someone to act for you when you are unable to act for yourself. These powers can be as narrow or as broad as you designate. The power may include business transactions, banking, child care powers, or health decisions (see below for more details on this power).
7. Health Care Power of Attorney and Medical Care Directive (AKA a Living Will)
Generally these are two different documents. The Power of Attorney for Health Care (POAHC) appoints an agent to make medical decisions for the principle if the principle should become incapacitated. This is typically needs to be a different POA from those that deal with financial and legal matters.
A similar, but narrower document, is an advanced health care directive, or “Living Will.” A living will is a document that tells a physician how to care for the principle IF the principle is incapacitated AND the principle is suffering from a terminal condition. When these two conditions are met, then the living will informs the physician of the wishes of the principle and how the principle desires to be treated.
8. Provision for Digital Assets
One area of property that is commonly overlooked but quickly growing is the area of digital assets. This would include everything from files on your computer hard drive, to domain names owned, to your social media accounts.
9. Authorization for Final Disposition
This is a form put out by the Wisconsin Department of Human Services that outlines specific funeral and burial instructions.
10. List of Important Documents
The last piece a good estate plan should have is a list of important documents and where to find each one. These documents should include life insurance policies, annuities, pension or retirement accounts, bank accounts, family records, divorce records, birth and adoption certificates, real estate deeds, stocks, bonds, and mutual funds. It should also list all bills and creditors that need to be paid, as well as any potential bills that should be disputed.