What Does Per Stirpes Mean?

What Does Per Stirpes Mean?

by | Apr 30, 2025 | 2025, Article, Estate Planning

If you have ever completed a beneficiary designation for a life insurance policy or retirement account, you may have encountered the term “per stirpes” and wondered what exactly it meant. Per stirpes is a Latin phrase that means “by branch” or “by roots.” In estate planning—like in wills, trusts, or beneficiary designations – it is used to explain how your assets should be passed on if the person you chose as your beneficiary dies before you. When considering whether you wish to incorporate the term “per stirpes” into your estate planning, it is important that you understand the effect the term has on the distribution of your assets upon death.

Wisconsin statute. § 854.04 defines the term “per stirpes”, as well as other phrases that may be used to incorporate the same distribution pattern. If your will, trust or beneficiary designation calls for property to be distributed to the descendants of a designated person “by representation,” “by right of representation,” or “per stirpes,” this will be the order of distribution:

  1. Your estate is divided into equal shares for each of your deceased beneficiary’s children.
  2. If any of those children have passed away but left children of their own, those children receive their parent’s share.
  3. This process continues down the family line until everything is distributed.

In many cases, incorporating the term “per stirpes” into your will, trust or beneficiary designation can be an efficient way to designate contingent beneficiaries. However, you need to carefully consider whether this distribution pattern follows your intentions.

If the person you designate as primary beneficiary passes away before you, do you want the property to go directly to their descendants or would you prefer the property be distributed to their spouse? Would you want the assets reallocated among the other surviving primary beneficiaries? Are the descendants of the primary beneficiary capable of managing the property, or would they need assistance managing any inheritance they receive?

These are important questions you should discuss with an experienced estate planning attorney, who can help you prepare to the best plan for your family and goals.

Divestments and How They Affect Medicaid Qualifications

Divestments and How They Affect Medicaid Qualifications

by | Mar 10, 2025 | 2025, Elder Law, Estate Planning

When applying for Medicaid in Wisconsin, particularly for long-term care services, one key concept to understand is divestment. Divestment refers to the transfer of assets for less than fair market value, such as gifting money or property to others, including family members, within a specific timeframe before applying for Medicaid. These transactions are closely scrutinized because Medicaid is a need-based program, and such transfers could be seen as an attempt to meet the program’s strict financial eligibility requirements.

In Wisconsin, the “look-back period” for Medicaid applications is 60 months (five years). During this time, all asset transfers are reviewed. If the state determines that divestment occurred, the applicant may face a penalty period during which they are ineligible for Medicaid coverage. This penalty period is calculated based on the value of the transferred assets and the average cost of nursing home care in the state.
Importantly, Wisconsin Medicaid does not allow general exceptions for gifting assets, even to children or other family members. Common misunderstandings arise from the belief that small or “reasonable” gifts, such as financial help to children or contributions for weddings or holidays, are permissible without penalty. However, under Medicaid rules, any transfer for less than fair market value can trigger penalties, regardless of intent or recipient unless it meets one of the very narrow and specific exceptions under the Medicaid rules.

The exceptions include the following:
• Transfers between spouses
• Transfers to a blind or disabled child
• Transfers to a trust for a disabled individual who is under age 65
• Transfer of the primary residence to a spouse, a child under 21, a child of any age who lives in the home and has provided care for at least 24 months prior to a nursing home admission or to a sibling who has an equity interest and has lived in the home for a least one year prior to nursing home admission.
• Transfer of an asset for full fair market value
• Transfers made with no intent to qualify for Medicaid

To avoid costly penalties, individuals should plan carefully and consult with an elder law attorney or Medicaid attorney. Proper planning can help protect assets while ensuring compliance with Wisconsin’s Medicaid rules. Understanding and adhering to these regulations is essential to ensure a smooth application process and avoid delays or denials of much-needed benefits.

If you have questions regarding divestments or Medicaid qualifications please make an appointment with one of our skilled elder law attorneys.

National Health Care Decisions Day

National Health Care Decisions Day

by | Apr 16, 2024 | 2024, Article, Estate Planning

National Health Care Decisions Day, Estate Planning

National Healthcare Decisions Day (NHDD) is celebrated each year on April 16th. Founded in 2008, the mission of NHDD is to encourage and empower people to begin or continue conversations about their wishes for care through the end of life.

Wisconsin is one of a minority of states that does not have a “family consent” law. This means that unlike other states, if you become incapacitated as an adult, no one in your family (including your spouse, parents, adult children or anyone else) has the legal right to make healthcare decisions for you. In this scenario, a legal guardianship typically must be established through the court.  

However, by signing a Healthcare Power of Attorney, you can name someone to handle your healthcare decisions in the event that you become unable to make these decisions. Everyone over the age of 18, who is competent to make one, should sign a Healthcare Power of Attorney and name both a primary and alternate agent to handle their healthcare decisions. You should make sure your primary and alternate agents are people you feel confident will follow through with your directives and be sure to communicate to them your values and desires for your healthcare.

In addition to a Healthcare Power of Attorney, you may also sign a Declaration to Physicians or a “living will.”  This document sets forth guidelines for withholding or withdrawing medical treatment from you in certain end-of-life scenarios. A living will is a declaration directly to your physician, while a healthcare power of attorney authorizes your agent to make healthcare decisions on your behalf.

Finally, it is important to be aware of the Health Insurance Portability and Accountability Act (HIPAA) and its impact on accessing your protected health information. The major focus of this law is to provide patients more control over their protected health information. The law prohibits disclosure of protected health information without your consent or authorization. You should consider signing a HIPAA authorization form allowing the release of your protected health information to the individuals you have named as agents in your Healthcare Power of Attorney. This will ensure they can access the necessary information to make informed healthcare decisions on your behalf.

Please feel welcome to contact our experienced attorneys at Anderson O’Brien, LLP to learn more about advanced planning for your healthcare decision-making. Let’s make everyday a Health Care Decisions Day!

2023 Fall Estate Planning Seminar

2023 Fall Estate Planning Seminar

by | Oct 24, 2023 | 2023, Estate Planning, News

Anderson O’Brien, LLP hosted the Fall 2023 Estate Planning Seminar. Four of our skilled attorneys presented on these topics: Protecting Your Assets from Probate and Guardianship, Protecting Your Assets from Liability, and Protecting Your Assets from Nursing Home and Long-Term Care Costs. Attorney Rich Fuller served as our master of ceremonies.

Anderson O’Brien, LLP hosts a seminar in the fall and spring each year. This a great way to connect with the community and share our expertise in estate planning. 

Stepping Down as a Presonal Representative

Stepping Down as a Presonal Representative

by | May 1, 2023 | Article, Estate Planning

There are a number of factors to consider before agreeing to take on the responsibility of serving as Personal Representative of someone’s estate. If a friend or family member has asked you to serve in any of these roles, it is important for you to think carefully about your ability to take on the responsibilities of the role and whether you are prepared for the legal obligations expected of you. As an attorney who practices in the estate settlement area, I have helped numerous Personal Representatives successfully handle estate administrations. The job of Personal Representative, however, can be somewhat daunting to someone who has never had the experience of serving, and should not be taken lightly.

A Personal Representative (also called “Executor”) is the person appointed to administer the estate of someone who has passed away. The Personal Representative is responsible for gathering and safeguarding the assets of the deceased, ensuring that all debts and expenses of administration are paid, and distributing the deceased person’s assets to the beneficiaries named in the deceased person’s Will. In addition, the Personal Representative is responsible to report to the Court during the various stages of administration of the estate.

Importantly, being named in a person’s Will is only a nomination, not an actual appointment. Before serving, a person nominated as Personal Representative must first be appointed by the Court before they can officially serve in that capacity.

What factors should you consider when deciding whether or not to accept the nomination?

  • Do you have the skills necessary to serve? A Personal Representative must be well-organized, detail-oriented, and have the ability to take on the responsibility of handling the financial assets that belong to the estate.
  • Do you have the time necessary to serve? Consider how close you live to the decedent. The estate will be handled in the county where the deceased passes away, and there will likely be financial institutions, agents, accountants and legal professionals that you will need to meet with in the decedent’s county of residence. There may be multiple beneficiaries that require your time and patience to explain the process and timelines.
  • Are you comfortable with the responsibility of acting as a fiduciary? A fiduciary’s duty is the obligation to act in someone else’s interest rather than your own. While that may seem like a common-sense approach to handling the estate of someone who has died, the most common disputes in probate administrations involve accusations that a personal representative has breached their duty to administer the estate in the best interest of the beneficiaries.

What if you decide not to serve? If you consider all of the factors and decide you do not want to take on the role as Personal Representative, the next steps depend on timing.

  • Before Death Occurs
    If someone asks you to serve as Personal Representative or notifies you that they have already named you in their Last Will and Testament, you can still decline the role. Simply advise them that while you are honored to be considered, you are unable to accept. If the Will has already been prepared, they will need to notify their attorney that an amendment, or Codicil, will need to be prepared to change the provisions regarding the nominated Personal Representative.
  • After Death but Before Appointment
    If you are nominated in the Will, but have not yet been formally appointed, you can notify the beneficiaries and heirs that you do not intend to serve. You should then file a Declination to Serve with the probate court. Most Wills provide for an alternate Personal Representative to serve in the event the first nominated Personal Representative is unwilling or unable to serve.
  • Resignation After Acceptance
    If you have already been formally appointed as the executor by the probate court, but wish to resign, you must file a formal resignation with the probate court. The Court may require a hearing to accept the resignation and notice will need to be given to the heirs and beneficiaries before a new Personal Representative can be appointed. You may continue to have ongoing responsibility to protect the estate until the new Personal Representative is issued letters of authority to act on behalf of the estate.

Relinquishing the responsibility to act as Personal Representative should not be taken lightly. If you have already been appointed by the Court, it is important to seek legal advice about best practices for discontinuing your responsibilities while protecting the estate and the rights of the heirs and beneficiaries. Please reach out to one of our experienced estate planning attorneys to help with this process.

 

Is It Legal to Write Your Own Will?

Is It Legal to Write Your Own Will?

by | Mar 14, 2022 | Article, Estate Planning

We often hear this scenario: you handwrite your final wishes and sign the document before storing it in your safe, bank box or another safe place. Is this document a valid Last Will and Testament to carry out your wishes?

In Wisconsin, this handwritten document is considered a “holographic” will. A holographic will is a handwritten document that is signed by the testator, being the person who intends to formalize their distribution intentions, but is not witnessed or notarized. Under Wisconsin law, such a will is not properly executed and is not considered a valid Last Will and Testament.

For a Will to uphold and truly carry out the final wishes of a testator, the document must be properly executed with a number of formalities. First, the document must be signed by the testator, either by the testator or with assistance of another person with the testator’s consent, or by another person with the testator’s direction and in the testator’s conscious presence.

Second, the document must be signed in the conscious presence of two witnesses. Alternatively, the testator may implicitly or explicitly acknowledge the signature on the Will or acknowledge the Will itself in the conscious presence of the two witnesses.

The two disinterested witnesses must sign the Will. These two witnesses shall be disinterested, meaning that they do not stand to inherit from the testator’s estate via the Will and they are not listed as fiduciaries in the Will.

A witness’s signature is not considered proper if the witness does not either actually witness the testator’s signing or receive the above-described acknowledgement from the testator. For example, a Will cannot be signed by a third-party at a different location without any acknowledgement from the testator. Further, Wisconsin does not allow for the signing of Wills via video conferencing.

You may also further protect your intentions by self-proving your Will at the time of execution if you sign your Will under oath and witness. To formalize this self-proved Will, you should sign your Will in the presence of a notary public and receive an official seal.

If you have questions about your estate planning options and whether a Will or another document is the right fit for your intentions, the experienced estate planning attorneys at Anderson O’Brien, LLP are happy to meet with you to discuss your options.