Taking Control of Your Estate Plan

Have you ever considered making a will or a revocable trust? Did you ultimately find a reason not to do so? If so, according to a recent survey by Caring.com, you are not alone. The survey indicates that only 42 percent of U.S. adults have estate planning documents such as a will or revocable trust. When the survey results are divided into age groups, it is apparent that people often delay getting these important documents until later stages in life.

The survey also notes that people have a variety of reasons for not preparing an estate plan. Forty-seven percent of respondents without an estate plan stated that they “just haven’t gotten around to it.” On the other hand, 29 percent of respondents indicated that they “don’t have enough assets to leave anyone.” While these reasons are not surprising, they do overlook the crucial importance of having these documents in place at any stage of life. Thinking about your own mortality is not fun at any age, but there are many reasons why everyone over age 18 should have an estate plan in place.

Be in Control of Who Receives Your Assets

First, preparing a will or revocable trust allows you to control the distribution of your assets upon your death, even if such assets are modest. You are able to name the beneficiaries who inherit your assets. If a person dies without a will or other estate planning, most states, including Wisconsin, have a default statute which controls who then inherits his or her assets. The people named to inherit as heirs under the statute may not be the same people who the decedent would have otherwise chosen if he or she prepared a will or revocable trust.

Be in Control of How your Estate is Handled

Second, if an estate needs to go through probate to be settled, having a will can often make the process simpler and less expensive for your loved ones. Probate is the court process used to settle a person’s estate if they have over $50,000 in solely-titled assets at the time of their death. If a person has a will, their estate is often eligible to be administered informally, which avoids the need for court hearings. Also, you are able to name in a will who you want to be in control of handling your estate. This person is called your “personal representative.” A will allows you to name a person you trust to serve in this role who has the necessary skill and time to do the job well. Finally, when meeting with an attorney to prepare your estate plan, you can also discuss various planning options to avoid probate all together, such as using a revocable trust.

Be in Control of Who Takes Care of Your Children

Third, if you have minor children, having a will is critical. It allows you to name a guardian to take care of your children in the event of your death. You can also incorporate trust planning into your estate plan so that the assets your children inherit are preserved for their benefit until they reach an age at which you feel comfortable having them manage such assets on their own.

Be in Control of Who Takes Care of You

Finally, when people think of putting together an estate plan, they often first think of preparing a will or revocable trust and planning for the event of their death. However, planning for the event of your incapacity through the use of a durable general power of attorney and health care power of attorney is equally important. These documents allow you to control who makes decisions for you if you become incapacitated and can no longer make such decisions on your own.

Despite the perception that only the elderly or the rich need estate plans, having an estate plan in place is crucial at any age to ensure you control important decisions regarding your life and your assets. Such proactive planning also allows you to make the process of settling your estate as simple as possible for your loved ones and ensures that your wishes will be carried out. These important decisions should not be left up to chance.

Medicaid Program – Partial Repeal of Wisconsin Act 20

On June 30, 2013, the Wisconsin Legislature passed Wisconsin Act 20. As noted in our fall issue, the new law dramatically changed certain aspects of the State’s Medicaid program for individuals who need long-term care. In general, the changes were aimed at allowing the State broader authority to recover funds paid on behalf of long-term care Medicaid recipients. Wisconsin Act 20 impacted a wide variety of laws, including laws relating to estate recovery, trusts, jointly-held property and life estates. The Act was accompanied by much controversy, and both the Elder Law Section of the State Bar and Wisconsin’s Chapter of the National Academy of Elder Law Attorneys advocated for a repeal or partial repeal of the new law.

As of this past December, the Wisconsin Legislature enacted a partial repeal of Wisconsin Act 20. The partial repeal is contained in Wisconsin Act 92, which adopts a modified version of the Uniform Trust Code and was enacted on December 13, 2013. Below is a summary of the provisions that were repealed.

  1. Wisconsin Act 20 provided that “exempt” assets (assets that do not impact a person’s eligibility for Medicare) could not be transferred to another person without the imposition of a divestment penalty. This provision has been repealed.
  2. Section 49.453(4c) of the Wisconsin Statutes, which was enacted under Wisconsin Act 20, imposed a divestment penalty on persons who entered into a promissory note or loan agreement with a “presumptive heir,” such as a child. This provision has been repealed.
  3. The provision that expanded the definition of what property may be subject to a claim by the State for recovery of funds paid on behalf of a long-term care Medicaid recipient has been amended to include “revocable trusts” rather than “living trusts,” and irrevocable trusts are now specifically excluded.
  4. Under Wisconsin Act 20, the State was allowed to recover funds paid on behalf of a long-term care Medicaid recipient from the estate of his or her surviving spouse using all real and personal property in which the surviving spouse had an ownership interest at the recipient’s death, including a marital property interest the surviving spouse had at any time within five years before the recipient’s application for benefits. This provision has been repealed.
  5. Wisconsin Act 20 also precluded the State from issuing undue hardship waivers to prevent recovery from the estate of a non-recipient surviving spouse. This provision has been repealed to allow waivers for hardship.
  6. The provision that allowed the State to void certain transfers of real property under Wis. Stats., § 49.4962, has been repealed.
  7. The provision that allowed the State to record a “request for notice” if certain real property in which a long-term care Medicaid recipient has an interest is transferred or encumbered has been repealed.
  8. Wisconsin Act 20 required trustees to provide the State notice of the death of a living trust settlor if either he or she, or his or her predeceased spouse, was the recipient of long-term care Medicaid benefits. This provision has been repealed.
  9. The requirement that trustees provide the State notice of the death of a beneficiary of a self-settled special needs or pooled trust if he or she was the recipient of long-term care Medicaid benefits has also been repealed.
  10. Wisconsin Act 20 held trustees personally liable to the State for any costs incurred in recovering funds paid on behalf of a long-term care Medicaid recipient from property distributed from the trust before any repayment to the State was made, and for any funds that the State was unable to recover from the persons to whom the property was distributed. This provision has been repealed.
  11. The provision that allowed the trustee of a pooled trust to retain only 30% of the balance of the trust after the death of a beneficiary who was the recipient of long-term care Medicaid has been repealed.

While the above provisions have been repealed, many of the changes that Wisconsin Act 20 made to Wisconsin’s Medicaid laws remain in effect today and have important implications for long-term care planning.

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