Sept. 2, 2020 – The coronavirus pandemic prompted many people to contemplate creating or amending estate plans. Clients may inquire about how to create a will or a durable health care power of attorney document.
In addition to will drafting, an estate planner helps the client reduce or eliminate uncertainty over probate administration, taxes, or other expenses. When there are minor children or incapacitated beneficiaries, an estate planner will help navigate the best options for long-term care or guardianship.
For many people, a will is just a starting point. Planning for the management and disposal of an estate during life or after death requires examining family, financial, and personal details to create the best plan tailored for the individual.
With intersections in elder law, probate practice, business management, family, and marital property law, estate planning is the process of helping your client sort through the details of their lives to determine how best to manage their estate or their own potential incapacity.
Background: Statutes and Regulations
Statutes and regulations affecting estate planners are plentiful. Some of the core Wisconsin statutes that may be useful when crafting an estate plan include:
chapter 700 interests in property;
chapter 701 trusts;
chapter 711 digital property;
chapters 851-881, which encompass numerous probate considerations and procedures; and
chapter 852, which sets forth the laws of intestate succession.
Other Wisconsin statutes of interest include:
chapter 48 and 52-54 – guardianships, conservatorships, and supported decision making;
chapter 154 – advance directives;
chapter 155 – power of attorney for health care;
chapter 157 – disposition of human remains;
chapter 244 – uniform power of attorney for finances and property; and
chapter 766 – property rights of married persons; marital property.
Estate Planning and Taxes – Resources
A frequent goal of a thorough estate plan is to minimize estate or gift taxes. Inheritance, trusts, and probate are governed by federal and state statutes and regulations. The Wisconsin Department of Revenue’s estates, trusts and fiduciaries webpage answers several questions about managing the taxes of a trust or estate. Wisconsin Statute chapters 71 and 72 regulate income and estate taxes. The federal estate tax is applied against probate and non-probate assets and certain gifts, and is detailed in Title 26 of the United States Code and Code of Federal Regulations. The estate and gift tax Internal Revenue Service webpage is an excellent source for learning more about filing estate tax returns.
Carol Hassler is a law librarian at the Wisconsin State Law Library. She is a member of the Law Librarians Association of Wisconsin (LLAW). LLAW's Public Relations Committee coordinates regular contributions by its members to InsideTrack.
It is useful to review uniform laws – even if Wisconsin has not fully adopted provisions or made changes to the model act – such as the Uniform Probate Code, Uniform Trust Code, and the Uniform Fiduciaries Act. Wisconsin adopted the Uniform Trust Act, encoded in Wis. Stat. chapter 701, the Digital Property Law, and the Uniform Probate of Foreign Wills Act.
Restatements examine myriad estate planning topics and are excellent sources for common law analysis. The Restatement of the Law, Property: Wills and Other Donative Transfers, and Restatement of Trusts can be used online through HeinOnline, accessed with a Wisconsin State Law Library card.
Estate planners will likely discuss with clients the benefits or drawbacks of Wisconsin’s statutory forms, including the Wisconsin Basic Will and Basic Will with Trust, which are set forth in subchapter II of Wis. Stat. chapter 853.
A durable Power of Attorney for Health Care is in Wis. Stat. chapter 155, and a Power of Attorney for Finances and Property is included in Wis. Stat. chapter 244. Download printable versions of these forms from the Wisconsin Department of Health Services advance directives page. State Bar of Wisconsin PINNACLE® publishes a guide for advance directives, A Gift to Your Family, in English and Spanish for Wisconsin, and in English for Illinois and Minnesota.
Finally, the State Bar of Wisconsin’s Real Property, Probate, and Trust Section (RPPT) recently assumed responsibility for the Wisconsin Transfer by Affidavit form, which is linked toward the bottom of their Probate FAQ page.
Wisconsin Estate Planning Books
Eckhardt’s Workbook for Wisconsin Estate Planners from State Bar of Wisconsin PINNACLE® provides a detailed overview of issues estate planners face, and includes checklists and forms to help your practice.
Other useful PINNACLE titles include Wisconsin Probate System: Forms and Procedures Handbook, Wisconsin Probate & Estate Planning Statutes 2020, and chapters from broader titles Wisconsin Attorney’s Desk Reference and Advising Older Clients and Their Families.
Two titles from the Wisconsin Practice Series from Thomson Reuters provide overviews of estate planning issues. Methods of Practice is a quick summary resource, and Death in Wisconsin reviews numerous post-mortem concerns, including cemetery and funeral law.
Sample will language, including codicils, can be found in a number of sources, such as Eckhardt’s Workbook, Methods of Practice, and Thomson Reuters’ Civil Procedure Forms for Wisconsin. Check the State Bar’s forms library for additional forms.
For clients, the Wisconsin Register in Probate Association’s Guide for Personal Representatives and the University of Wisconsin Extension guide, Family Estate Planning in Wisconsin can be helpful to explain basic concepts and procedures.
Additional State Bar Resources: CLE and Practice Section
The State Bar of Wisconsin PINNACLE® offers OnDemand CLE seminars on a number of estate planning issues. To find a current list of both books and CLE, use this link to head to WisBar.org’s Marketplace. There is also an Estate Planning and Probate selection in the drop-down list under the Practice Areas heading.
Current online seminars include the 2019 Step-by-Step Estate Planning I and Step-by-Step Estate Planning II CLE seminars.
The State Bar of Wisconsin’s Real Property, Probate, and Trust Section (RPPT) offers additional benefits to members and maintains a blog examining current estate and property related issues. To join the section, log in to WisBar.org and visit the RPPT Section webpage.
General Estate Planning Books
Many books provide overviews of estate planning or will creation. Among the self-help primers for individuals and families, some books stand out as single volume solutions for the practicing attorney.
West’s Nutshell guides cover many topics, including Introduction to Estate Planning in a Nutshell (2019), Wills and Trusts in a Nutshell (2017), and Federal Estate and Gift Taxation in a Nutshell (2019).
BNA’s Tax Management Portfolios, Estates, Gifts and Trusts publishes on a variety of estate-related topics. Estate and Trust Administration: Tax Planning gives an overview, but other titles focus on specific issues, like the book Testamentary Capacity, Undue Influence and Validity of Wills.
Drafting Wills and Trust Agreements, by Michael L.M. Jordan (Thomson Reuters),
in its 4th edition, takes a systemic approach to creating will and trust documents. This practice-oriented guide uses a checklist system to build documents.
Planning an Estate: A Guidebook of Principles and Techniques (Thomson Reuters), in its 4th edition and updated annually, examines tax, the small family estate, revocable living trusts, as well as general information for practitioners.
Estate, Tax and Personal Financial Planning, by Edward F. Koren (Thomson Reuters) is a three-volume set with an overview of planning scenarios, including planning for business owners, ranchers or farmers, unmarried clients, and other special situations.
Your clients may have access to self-help law books or websites which helped them create estate planning documents for your review. Find sample form language in a number of large form sets, as well as specific titles devoted to estate-planning topics.
Some key treatises covering wills and trusts include:
Page on the Law of Wills, by Jeffrey A. Schoenblum (LexisNexis) – will drafting and analysis, sample form language, and an examination of trusts
Bogert: The Law of Trusts and Trustees, by George G. Bogert and Amy Morris Hess (Thomson Reuters) – analysis and practical guidance from one of the most authoritative sources on this topic. Includes practical guidance for use in trials.
Scott & Ascher on Trusts, by Mark L. Ascher, Austin Wakeman Scott, William Franklin Fratcher(Wolters Kluwer) – a key work on the law of trusts, this title provides a thoroughly cited overview of trust law.
Finding Recent Developments
Timely topical analysis is extremely helpful. Turn to the Annual Philip E. Heckerling Institute on Estate Planning series or current law reviews. Research law review articles and bar journals online with a Wisconsin State Law Library card.
Several articles exist on particular aspects of estate planning, such as this recent article from the State Bar, Guidance on Remote Notarization; Execution of Estate Planning Documents or Estate Planning after the Pandemic: How the Coronavirus and Technology Will Change the Estates Practice (34 Prob. & Prop. 60, 2020), which is available through HeinOnline.
The pandemic may affect ways attorneys meet and work with clients, execute documents, and administer estates. Follow the State Bar Real Property, Probate, and Trust Law Blog, and watch for analysis in InsideTrack and Wisconsin LawyerTM magazine.
Keep Up to Date
Research is the greatest friend of the estate planner. A comprehensive estate plan navigates a number of issues and a wide intersection of laws to create the best suite of documents to serve the client. The books listed in this guide are available through the Wisconsin State Law Library. Ask a law librarian for help locating information and sample form language.