Estate planning is an often overlooked piece of an otherwise responsible life. But what exactly is estate planning? It is more than just a Will, more than naming an “executor,” more than deciding who will get the antique engagement ring you inherited from your grandmother. Estate planning should certainly include those things, but it is much more, or at least with the assistance of an able attorney, it should be.

The term “estate planning” refers not only to planning for the distribution of your property at death, but also to planning for your health care, finances, and family if you become incapacitated during life. Who would pay your taxes and mortgage, or your child’s college tuition, if you became seriously ill or injured? Who would care for your minor children? These are the eventualities that a thorough estate planning attorney should prompt you to address. In this sense, “estate planning” is a misnomer; “life and estate planning” is a more accurate description.

While life and estate planning is a serious endeavor, it need not be a daunting or even a morbid one. Clients should be guided, and sometimes nagged, through the process, and they should expect more than just documents. They should expect an attorney to guide them through beneficiary designations and property titles, the execution of the documents, and finally, the distribution, storing, and updating of the documents.

The following is a guide to the life and estate planning process, a checklist of what to expect, or demand, from your attorney:

1. Deciding to complete a life and estate plan. No matter the exact make-up of your family constellation, your age, marital status, or sexuality, the size of your estate, or the state of your health, you need a life and estate plan. Otherwise, the State of Wisconsin will provide one for you, no matter your wishes, and it will assess fees to do so. You risk, for example, losing the right to choose whether to live or die, and/or not having a voice in who will raise your children upon your incapacitation or death. Life and estate planning is about you maintaining control of your life.

If you have minor children, life and estate planning becomes even more important. You need to execute a Nomination of Guardian, in which you decide who will care for your children upon your incapacitation or death. If you are not married or cannot marry, a competent life and estate plan must address a non-legal parent’s rights to the children. You must also ensure that your Will establishes a minor support trust, or something similar, to avoid your children’s inheritance being placed in a burdensome process controlled by a court.

If you have a large estate, without a life and estate plan, the U.S. government and the State of Wisconsin may deplete your estate through their tax laws, so that you will pass on less to your loved ones.But money or no money, children or no children, life and estate planning is also about your health care wishes. Age or the state of health is irrelevant. The need for careful planning and clear wishes was nowhere more evident than in the public debacle in Florida in 2005 surrounding Terri Schiavo’s death.

2. Choosing the right attorney. Yes, unfortunately, you should retain an attorney. Completing standardized documents from your hospital, bank, or worse, the Internet, can do more harm than good. You should invest in your peace in mind and look at attorney fees as a front-end expense.

Your choice of attorney is one of the most important steps in the process. Your attorney should be one experienced in life and estate planning, and not just an attorney you know who practices in some other area of law. If your life has a so-called “non-traditional” twist, you should seek out an attorney experienced in your situation. For instance, LGBT families should retain an attorney well-versed in the unique issues they confront. The same principle applies for high-income families and individuals with specific health issues.

3. Disclosing your family tree, health, and assets. Your attorney should begin the process by asking you to complete a questionnaire regarding your family tree, mental and physical health, and assets. You should therefore be ready to list every bank account, savings bond, life insurance policy, and retirement account. Take this opportunity to organize and centralize your financial information. While the disclosure may feel invasive, without this information, an attorney cannot give you competent advice. You should expect, and insist upon, an estate plan that accounts for each and every individual asset. Again, an estate plan is more than just a Will. Your attorney should guide you through beneficiary designation forms for retirement accounts and life insurance policies, and property titles for bank accounts, mutual funds, and real estate, to avoid unnecessary probate fees.

4. Learning about and understanding your life and estate plan. After you have made the necessary disclosures, and your attorney has designed an individualized plan for you, you should go through your documents together. You should expect, and demand, to be educated as to how they work. This is important not only for your personal betterment and financial astuteness, but also for the validity of the documents. Too often, my clients come to me with documents from their former attorney, creating some elaborate trust, and they have absolutely no idea what was done or how the plan works. Such a blind-eye could create a cause for challenge of the documents.

5. The execution meeting. After your documents are drafted and explained to you, your attorney should oversee the signing of the documents with you, your witnesses, and a notary public. You and your attorney can create a brilliant estate plan, but if you do not sign the documents according to the formalities required by statute, your documents will be invalid.

6. What to do with your documents. Your attorney’s duties do not end after the execution meeting. Your attorney should provide you with guidance on where to store the originals, to whom to give copies, and how to keep track of it all. Your life and estate plan is worth nothing if the relevant people don’t know about, can’t find, or don’t have access to the documents when they need them. Your attorney should not retain your original documents. In fact, it is unethical for him or her to do so. However, your attorney should keep copies of all your documents in his or her file, and should be willing and able to release copies to you and others upon reasonable request with the appropriate client consent.

7. Updating your life and estate plan. Your attorney should instruct you at the end of the process on how to revoke or amend your documents, as well as on the life changes that may necessitate an update to your life and estate plan. He or she should also check in with you at least every five years to determine whether an update is necessary or advisable.

With the right attorney, the life and estate planning process should be structured and thorough, with the final product being not just documents, but your peace of mind knowing that you have done everything you can to protect yourself and your family.

Introduction

Marriage brings with it many advantages under both state and federal law. As you probably well know, however, you and your family do not receive the benefits and protections that are automatically granted other families because, under present law, you cannot marry. The law instead treats you and your partner as “legal strangers,” and more like business partners than life partners.

The Law Center for Children & Families will help protect you and your family from this discrimination by thinking creatively and carefully crafting wills, trusts, contracts, and other legal documents. We will help you confront and navigate the complex legal issues, and provide cutting-edge solutions to the unique challenges you, your family, and your estate face.

Why do you need a Life Plan?

The term “life planning” may sound vague and broad, but it is actually very easy to define: it is what you and your family need to protect each other in the event that one of you becomes seriously ill or injured. The need for careful planning and clear wishes was nowhere more evident than in the public debacle in Florida in 2005 surrounding Terry Schiavo’s death.

For better or for worse, contract law governs your family, not family law. By not having a life plan, upon your incapacitation or death or the dissolution of your relationship, you are inviting federal and state law to haphazardly govern your family using a so-called “traditional” family model. If you do not spell out your wishes in legal writing, you risk, for instance, losing the right to choose whether to live or die, and/or your partner being denied visitation rights in the event of your hospitalization.

You and your family face an additional challenge: prejudice. Frequently, courts do not accord family constellations that include gay and lesbian partners the same deference as other families. The Law Center will help you to predict such discrimination and protect against it. To this end, we recommend and will design the following documents to meet the individualized needs of your family:

• Living Wills and Health Care Powers of Attorney
• Health Care Facility Visitation Authorizations
• General and Limited Financial Powers of Attorney
• Nominations of Guardians for Minors and Adults
• Name Change documents
• Domestic Partnership Agreements
• Co-Parenting Agreements
• Agreements governing termination of the relationship intended to avoid litigation, including property division and child custody, visitation, and support

The Law Center can also refer your family to trusted insurance agents and certified public and tax accountants with experience in handling complex financial matters for families similar to your own.

Why do you need an Estate Plan?

If you do not have an estate plan, the State of Wisconsin will provide one for you, no matter your wishes; and it will assess your estate hefty probate fees to do so. Unless you have an estate plan, the U.S. government and the State of Wisconsin may deplete your estate through their tax laws, so that you will pass on less to your loved ones. Furthermore, with or without an estate plan, you and your family face the additional challenge of having to predict and address the possible prejudice your estate may face after your death.

Intestacy
Intestacy is the costly and time-consuming process that will control the distribution of your property at your death if you die without an estate plan. The statutory process is based on the so-called “traditional” family model: children, grandchildren, parents, siblings, and grandparents. Surviving partners do not appear in the order of descent. Thus, without an estate plan, your estate will pass to your next of kin instead of your life partner. There is no room for your wishes in intestate succession. This process can be easily avoided with a will.

Probate
Probate is also a state statutory process that is lengthy and expensive. Specifically, it is the court proceeding in which: (1) your will is validated or intestate succession is implemented (if you do not have a will); (2) federal and state gift and estate taxes are paid; (3) your personal creditors are paid; (4) probate fees are assessed; and (5) your remaining property is inventoried and distributed to your beneficiaries (or heirs-at-law if you do not have a will). The disadvantages of probate, however, can be easily minimized with experienced and creative estate planning.

Gift and Estate Taxes
If your gross estate at your death exceeds certain dollar amounts, it will be subject to considerable federal gift and estate taxation, as well as Wisconsin estate taxation. The Law Center can assist you in structuring your estate plan and your financial behavior during your life, to lessen the tax burden your estate will face after your death. Such planning will enable you to pass on more of your estate to your loved ones rather than to the federal and state governments.

Challenges to Your Wishes
After your death, your family may face additional legal woes. Because estranged and/or unaccepting family members may, and sometimes do, challenge wills in probate, your estate plan may be vulnerable to attack. Sometimes even mental competency is challenged. The Law Center will help your family plan and take every action to foreclose those potential challenges, for instance by conducting meticulous procedures in executing your will and drafting affidavits to document your state of mind.

To protect you and your family against these threats, The Law Center will fastidiously guide you through the following estate planning options:

• Wills
• Trusts
• Intestacy
• Funeral arrangements
• Non-Testamentary/Non-Probate Transfers (e.g., payable on death (”POD”) and transfer on death (”TOD”) designations, life insurance, and retirement benefits)
• Property Title (e.g., joint tenancies)

Recommendation

The Law Center recommends that you and your family take at least the following steps immediately:

• Work with an attorney knowledgeable in same-sex estate planning to make a Will and/or Trust to dispose of your assets upon your death.
• Title your assets strategically.
• Consult with an income taxation accountant regarding how to maximize your family’s allowable deductions, exemptions, and credits.
• Take out life insurance policies on each other to cover some of the unavoidable tax and probate expenses to which same-sex couples are subjected by virtue of their non-marital status.
• Execute a Living Will and Durable Powers of Attorney to enable your partner to make decisions for you in the event of your incapacitation.
• Enter into a Domestic Partnership Agreement and a Co-Parenting Agreement (if applicable) with your partner, so that the two of you decide what will happen if you dissolve your relationship rather than Wisconsin’s outdated contract and family laws.

Despite the challenges discussed above, the life and estate planning process does not have to be a morbid or painful experience. You may want to be protected because you are starting a family or because you have just been diagnosed with a serious illness. Regardless of the circumstances that bring you to The Law Center, we strive to make the process a structured and positive one with the final product being your peace of mind knowing that you have done everything you can to protect your family.

Wisconsin law gives foster parents certain rights. Foster parents are often the best advocates for their foster children because they are committed to the children and have current information about them. Unfortunately, foster parents do not always know their rights.

Under Wisconsin law, foster parents may have access to records pertaining to their foster children and the right to notice of all hearings in the case involving the child. They have the right to be heard at such hearings and to provide information to the judge. Sometimes, foster parents choose to be represented by counsel, so as to most effectively communicate their position.

If a child has been in a foster home for six months or longer, the placing agency cannot remove the child from that home without 30 days notice, except in an emergency. The foster parents have the right to a hearing at which they may present evidence. If the foster parents show that removal is not in the child’s best interests, the child may not be removed from the foster home.

It is important always to keep in mind that the purpose of foster care is to protect children. When a child is placed in foster care, there must be a permanency plan designed to ensure that the child is reunified with her family whenever appropriate, or that she quickly attains a home providing long-term stability. The key, from a child’s point of view, is that reunification should occur when appropriate, and that permanence for the child should not be delayed.

Sometimes the permanency plan involves two goals; for example, return to the parents’ home or adoption. This “concurrency planning” occurs when it appears that the parents may not remedy the problems that caused removal of the child. In that case, the child’s needs must come before the parents’ and the child remains in the foster home and frequently is adopted by the foster parents. With concurrency planning, if the first goal cannot be achieved, the process is already in motion to accomplish the other goal.

Emily is an enthusiastic representative of our clients’ interests. She brings persistence and an ability to think creatively to her work on behalf of children and families. Emily believes in thorough planning to help her clients prepare for life’s turns, both now and in the future. She has a special interest in LGBT and international issues.

Education

Emily earned her law degree cum laude from Tulane University Law School in 2005. She earned her B.A. in political science summa cum laude from Arizona State University in 2000 where she was elected to Phi Beta Kappa.

During law school, Emily externed for Chief Justice Shirley Abrahamson of the Wisconsin Supreme Court and clerked for the Honorable Judge Sarah S. Vance of the U.S. District Court for the Eastern District of Louisiana. She also participated in Tulane Law School’s Cuban Detainee Program and was the panel chair of the Small Claims Court Arbitration Program in the City of New Orleans.

Personal

Emily enjoys international travel, hiking and photography. She also enjoys playing the piano and flute, and most importantly, spending time with her husband, Kyland, and their dog, Oliver. Emily is on the board of directors of Domestic Abuse Intervention Services.

Alberto is an experienced family attorney. He recognizes that divorce isn’t about winning or losing but about finding the best solution for the family as a whole. He is a creative divorce attorney who tries to avoid emotionally and financially expensive court battles when possible. However, when settlement isn’t an option, Alberto is an aggressive advocate who will fight for our clients’ best interests.

 Alberto is also a business law attorney and has a special interest in lemon law.

Education

Alberto graduated from the University of Wisconsin, School of Law in 2001, and received his Bachelor of Arts degree from Indiana University in 1996. He has written for the Wisconsin Journal of Family Law. Alberto is fluent in Spanish.

Personal

Alberto is a volunteer for the University of Wisconsin’s Lawyer Skills Program and also a coach for his children’s soccer and baseball teams. When he is not busy at work, he is busy raising his 3 children.

Lynn is a creative litigator and strategist who devotes her skills to protecting the rights of children. She is persistent and creative in finding legal solutions for families. She believes that the law should provide solutions, not roadblocks.

Professional Activities

Lynn frequently speaks, and occasionally writes on legal issues affecting children. She regularly presents to Wisconsin lawyers, as well as to national groups. At the University of Wisconsin Law School, Lynn has also lectured on family law, trial advocacy and general practice. She has written for such publications as Adoptive Families, Adoption Factbook and Adoption Law: Practice and Procedure in the 21st Century.

The American Academy of Adoption Attorneys was founded in 1987 to promote the highest quality in legal representation pertaining to adoption. Lynn is proud to serve the academy as trustee and committee chair.

Lynn is an officer and board member of Adoptions of Wisconsin, Inc., a non-profit adoption agency. She is also a founder, owner and officer of The Surrogacy Center, LLC. Her activities with these organizations highlight her belief in providing a high level of service.

Education

Lynn graduated from the University of Wisconsin – Madison with Honors and was elected to Phi Beta Kappa, majoring in Communication Arts and French. She received her law degree from the University of Wisconsin Law School in 1987.

Community Service

Lynn is a member of Madison Horizons Rotary. She also serves on the Cub Scout Pack 302 Executive Committee.

Personal Interests

Lynn and her husband have two active sons who keep them busy with soccer, baseball, swimming and diving. Sometimes, she finds time to work on her knitting. Lynn also enjoys walking, usually with the family’s labrador retriever. She is also a fair violinist, who plays with the Madison Community Orchestra.

We are proud to have been part of changing the law of the State of Wisconsin to better protect children and their relationships with the adults who care for them. In Holtzman v. Knott, we prevailed when the Wisconsin Supreme Court held that a psychological parent could seek visitation with her child, over the biological parent’s objection, after meeting a four-part test. This test was developed in our briefs.

Our law firm has also been asked to write appellate briefs as amicus curiae, or “friend of the court.” These are cases in which we do not represent a particular party, but advance a point of view important to the development of law pertaining to children. We have written amicus briefs on behalf of such organizations as the American Academy of Adoption Attorneys and Grandparents United for Children’s Rights. See, for example, Troxel and Marquette S.

Below are some of the reported appellate cases in which we have been involved.

U.S. Supreme Court

• Troxel v. Granville
  530 U.S. 57 (2000).

Wisconsin Supreme Court

• In re Custody of H.S.H.-K.
  193 Wis. 2d 649, 533 N.W.2d 419, 64 USLW 2007 (1995).
• In Interest of Angel Lace M.
  184 Wis. 2d 492, 516 N.W.2d 678 (1994).
• In Interest of Brandon S.S.
  179 Wis. 2d 114, 507 N.W.2d 94 (1993).
• In re Interest of Kyle S.-G.
  194 Wis. 2d 365, 533 N.W.2d 794 (1995).
• In re Termination of Parental Rights to Thomas J.R.
  2003 WI 61, 262 Wis. 2d 217, 663 N.W.2d 734.
• State v. Bobby G.
  2006 AP66-NM, Wisconsin Supreme Court (Decision pending).

Wisconsin Court of Appeals

• In re Custody of Neven D.H.
  2004 WI App 93, 272 Wis. 2d 796, 681 N.W.2d 552.
• Waukesha County v. Tadych
  197 Wis. 2d 653, 541 N.W.2d 782 (1995).
• In re Visitation of Z.E.R.
  225 Wis. 2d 628, 593 N.W.2d 840 (Ct. App. 1999).
• In re Adoption of J.C.G.
  177 Wis. 2d 424, 501 N.W.2d 908 (1993).
• In re Paternity of Michael A.T.
  182 Wis. 2d 395, 513 N.W.2d 669 (Ct. App. 1994).

7th Circuit Court

• Lewis v. Anderson
  308 F.3d 768 (Ct. App. 1993).

Then you can decide. If you want to go further, you can hire us. If you decide to wait, that’s fine too. We’re here when you need us.

The Law Center for Children & Families
450 S. Yellowstone Drive (View Map)
Madison, WI 53719

Telephone: 608-821-8200

Toll-free: 888-860-KIDS (5437)

Fax: 608-821-8201

Or email us at info@law4kids.com

Carol brings patience, caring, creativity and an incisive mind to her practice. She has been involved with issues affecting children and families for many years, first as a drug and alcohol counselor, a hospital social worker, a child protective services worker, and since 1988, as an attorney.

Professional Activities

Carol writes and presents frequently about child related issues to attorneys, grandparents, foster parents, social workers and others. She has authored briefs in the United States and Wisconsin Supreme Courts, including an amicus brief supporting grandparents in the Troxel case. She has also worked though the legislature and the courts to develop laws to protect and nurture children. Carol has been a member of the American Academy of Adoption Attorneys since the early 1990s. She is also a member of TEMPO, a group for professional women.

Carol is a founder of Adoptions of Wisconsin, Inc. and serves on its board of directors. She is also a founder, owner and officer of The Surrogacy Center, LLC.

Education

Carol earned her law degree cum laude in 1988 from the University of Wisconsin Law School. She received her BA degree in psychology from the University of Wisconsin – Madison in 1968.

Personal Interests

When she is not practicing law, Carol enjoys accompanying her dogs to the dog park and exploring the outdoors. She and her husband, Gary, have three grown sons.