This article will explore questions that many clients have failed to contemplate  or made  a decision regarding prior to their initial planning consultation.   Often the questions presented below elicit the “I never thought of that” response.   Not all of these questions will apply to everyone.  Fortunately, the disaster-type scenarios  almost never occur.  Problems with family relationships and dealing with in-laws almost always do.

As an estate planning attorney part of my job is to present situations that are unpleasant to consider. The purpose of this article is to give you an opportunity to prepare for some of these hard decisions ahead.  Each “hard” question will be preceded by a fact pattern that applies.

For all the questions, our hypothetical family will consist of the married clients, Bill and Mary, their two grown and married children, John with wife Susan and Kathy with husband Mark.   Bill and Mary have four grandchildren, two for each child.  If Bill and Mary were to die today and divide their estate equally between their surviving children, each child would receive $400,000.  Both children are capable of managing the money.


The “I never thought of that” response is usually followed by a discussion that the odds are astronomical that it will never happen.  However, to make an estate plan comprehensive, an answer is necessary.  Here are some of  the answers I have received after thoughtful consideration.

  • Parents of Bill and/or Mary  if either’s parents are still living
  • Brothers and sisters or nieces and nephews of Bill and Mary
  • Charities
  • Friends
  • Rely upon the state laws which apply to estates with no named beneficiaries


How to treat a son-in-law or daughter-in-law if your child, the spouse is deceased, is often a difficult decision.  When a child dies before the parents doing the estate plan, the answer to this question  often is dependent upon whether John has surviving children (the planning couple’s grandchildren).  Here are some of the commonly used options.

  • Susan replaces John in the distribution
  • Susan receives nothing and the share is divided equally by John and Susan’s children
  • The share is divided in some manner between the surviving spouse and the grandchildren

Even if Susan does not receive John’s share, another decision regarding Susan may be necessary.  If John’s children are too young and require a trust, should Susan,  Kathy (the child’s aunt), or another party serve as the trustee.  If the grandchildren are not old enough to manage their own financial matters, the trustee serves as the gatekeeper for the funds.  At a designated age, usually 25 or older, the grandchildren may assume control of their trust.


When adult children get along and are trustful of each other, the planning options are clearer.  Presuming that both children are capable of handling financial decisions, making the choice of whether one should be in charge or both should act together should be easy.  Since they trust each other, they should be able to work together.  In this case often times the child closest geographically to the parents is selected as the primary decision maker.  Some families prefer age order or select the person with the most relevant work experience or the one that has exhibited the ability to help in the past.  When the two children do not get along, the options are much more difficult.  Here are the limited options.

  • Select a neutral third party such as a trust company (corporate fiduciary), CPA, or a family friend or relative willing to serve.
  • Select the children to serve together.  This sounds like a recipe for disaster but I have had very good luck once the feuding children understand they must work together.
  • Select the child with the most experience of helping the parents in the past.


Most parents with financially competent children believe initially that the inheritance should go outright.  In other word, once the estate is settled a check for $400,000 (presuming the estate is liquid) is delivered to each child.  The child then has the total discretion to do what he or she wants to do with the money.  Once the checks are delivered to each child, the probate or trust administration (depending on the type of planning the couple had) is concluded.  The assets belong to the beneficiary.  The case is closed.

The outright distribution method is usually the quickest, easiest, and least costly.  The problem with this strategy is if the beneficiary is or becomes a party to a lawsuit, bankruptcy, or divorce, the inheritance will be at risk. An experienced estate planning attorney will be able to provide several options that provide asset protection for the inheritance.  These options are usually a minimal hinderance on the use and enjoyment of the assets.


These four scenarios are examples of questions the planning individual or couple should consider.  An experienced estate planning attorney should make sure these situations are discussed during planning discussions. While this list is not complete,  you should be prepared to confront potential situations you would probably prefer to avoid thinking about.


This article will attempt to answer basic questions about estate planning during the coronavirus outbreak.


Every individual 18 and over should have a basic estate plan.  This has not changed since the coronavirus outbreak.  People are now paying greater attention to the need.  Most think of estate planning as a task for older adults.  That is not accurate.  In Wisconsin when a child reaches 18, parents not longer have decision making authority over their children without the proper legal documentation. This topic has been previously discussed in Does My Child in College Need an Estate Plan?  Also, spouses are not automatically entitled to make health care decisions for each other.


A basic plan includes a health care power of attorney and living will, a financial power of attorney, and a will or trust.  Please follow this link to learn more about these documents. What are the Components of a Basic Estate Plan?

Comprehensive planning for complex estates may not be easily completed while social distancing in still in effect.  However, the basic plan documents can still be completed and put in place.  Dealing with more complicated issues can be handled later.

For individual with existing plans, revisions to those plans to account for circumstances that have changed can usually be made without difficulty.


Basic planning documents can be created and delivered now. The attorneys that I work with and our staff are finding creative ways to discuss planning options with clients.  In most cases, documents not requiring a face to face meeting can be prepared now. If you live in Wisconsin, you may contact me through this site or directly by email at to discuss these options.  I want to stress in most cases a face to face meeting is not required.


Most planning can be accomplished by phone or video conferencing.  You should be able to have your plan prepared from the comfort of your home.  Our firm has access to all the necessary phone and video applications to satisfy your needs.

Once your plan is completed, options for finding a safe way to have those documents signed will be discussed with you.  If you have access to a printer, many documents can be forwarded to you as a PDF.  If you lack the ability to print your own documents, we can have them printed and mailed to you.

For proper signing of your documents, some banks are providing notarization services in their drive through lanes. Many UPS Stores  will provide notary services with an appointment. If necessary, we can have a notary service sent to your location.  Certain plan documents require only signatures.  No witnessing or notarization is needed.  It is essential that you receive legal advice to learn the signature and witnessing requirements of the various plan components.  Use extreme caution if you attempt creating your own estate plan.  I cannot recommend that course of action. For more information on this topic, please consult:  Estate Planning: Should You Do It Yourself?

If a face to face meeting is needed, make sure that all social distancing protocols are followed.  Our firm is currently planning for the reopening of our offices.  No certain date has been set.  Our goal is early June 2020.  At the time we do reopen, we plan to follow the then current guidelines.  Prior to the office reopening, our entire estate planning team is working remotely to serve our clients.


The first step is to contact an estate planning attorney.  I belong to many nationwide and statewide estate planning and elder law groups that have been working diligently on establishing protocols for safe estate planning.  Make sure you are comfortable that firm you work with is serious about protecting your safety.  I assure you that our firm is taking this outbreak very seriously.

Until no longer necessary, our firm plans to implement the following precautions:

  •  Masks must be worn before you are allowed to enter our offices (our firm will provide)
  • Hand sanitizer will be used and gloves will then be worn (our firm with provide)
  • Proper distancing
  • Use of your own pen or make sure all pens we provide are only used by one person and not shared
  • Surfaces will be disinfected prior to and in between meetings
  • Temperatures checked before start of meeting
  • Only essential participants allowed in the meeting room
  • Papers shall be passed between participants only as necessary
  • Meetings shall be kept as short as possible with use of phone and video for follow-up questions

Estate Planners are doing their best to provide essential estate planning services during these difficult times.  Obstacles exist now due to the coronavirus outbreak  that did not exist at the end of 2019.  Please contact me if you want to explore creative ways to get your estate plan created or updated.

A comprehensive estate plan review is recommended at a minimum of every three to five years.  Other circumstances may create the need for a more frequent review.  This article will present the factors you should consider when deciding whether to schedule an appointment to review your current plan with an estate planning attorney.


Even if you have no written estate plan, your estate plan has been provided by the state of your residence.  If you are a Wisconsin residence, your plan can be found in the statutes of  the State of Wisconsin.  The state provided plan may have several surprises in it, especially, if you are in a second marriage and have children from a prior relationship.  Do yourself a favor.  Find out how the state’s plan works or doesn’t work for you.


Since your estate plan was prepared, your situation has remained stable.  Lack of change in your circumstances is not conclusive as to whether or not a review is necessary.  Two other factors come into play. First, changes in the law may significantly impact whether your plan will work as initially designed. Second, your estate planning attorney may have developed new planning strategies that would be beneficial to you and your family.  Does your plan include provisions for digital assets and access to online accounts.  Older plans will not include provisions to cover these items.  In recent years, updates have helped families to save money administering trusts for married couples upon the first death of a spouse.


An estate plan review makes great sense at the time of retirement. Often with retirement comes a change in investments and life insurance benefits.  If you plan on rolling over your workplace benefits to a private investment company, you need to make sure your beneficiary designations are properly coordinated with your estate plan. The level of your wealth at the time of retirement may require you to alter your lifetime giving strategy.  If retirement will include a move to another state, your estate plan should be viewed in light of the state laws of your new home.


Make sure your plan is up to date if your health begins to decline.  Certain planning strategies can best be undertaken when you are still legally competent to sign documents for yourself.  A trust and powers of attorney are critically important if you lack legal capacity to alter your plan on your own.  Make sure that these documents still accurately depict your wishes.


Has a family member acquired special needs not addressed in your current plan.   Should you reduce the share your lottery winning son receives in order to increase the share another child or include a charity. Has a feud developed between your children.  Has a poor relationship been repaired.


When your current plan was designed, you selected individuals to play important roles.  People you named to handle your finances, make decisions about your health, and even raise your children.  Can the person named still best fulfill that function.  Has the person you named:

  • Moved out of the area
  • Suffered a decline in health
  • Acquired new responsibilities that may impair the ability to spend time assisting you
  • Exhibited personal traits that cause you to lose faith in their decision making abilities


A good estate plan provides for the contingencies of births and deaths.  For instance,  a young couple’s new child will normally be treated the same as the children listed by name in the plan.  When a trustee or beneficiary dies, a backup is named to fill the vacancy.  Are your backups still appropriate or sufficient in number. Do the contingencies built into your plan still make sense.


Many plans are created when your children are young.  Contemplating a child’s marriage and grandchildren is remote while you are struggling to have them complete their multiplication and division homework.  Now that the children are in their 20’s and 30’s, how do feel about these matters:

  • If your child died unexpectedly, are you confident your son-in-law or daughter-in-law would protect the best interests of your grandchildren.
  • Is your son or daughter’s inheritance protected from a divorcing spouse
  • If your child is engaged in a risky business or exposed to professional liability, does your plan provide for asset protection (i.e., child would not lose inheritance in a lawsuit or bankruptcy)
  • Do  you want to make a specific bequest to a grandchild (a fishing rod or favorite ring) that wasn’t even born when your plan was made.


Don’t be a stranger to your estate planning attorney.  A review meeting may save several headaches and dollars for you and your family.  Many attorneys including myself provide complimentary estate planning reviews for both existing and new clients.  Even if your attorney charges for these meeting, it is usually money well spent.



Deciding whether to use a will or a trust is often the most pivotal decision made during an initial planning meeting.  The entire structure of the plan depends on this choice. Ultimately, the decision should made by the client only after an understanding of the pros and cons of these two planning tools is understood.  A skilled estate planning attorney should be able to tailor the discussion based upon the level of knowledge the prospective client brings to the meeting.  The balance of this article will address the process I use to help the client make the appropriate decision.


Often, a person will call my office requesting a consultation to “get a will” or “set-up a trust.” Before I assist by preparing those documents, I need to make sure the client understands what is being requested and whether it is appropriate for the specific situation.  If the person scheduling the appointment stated a preference for either a will or trust when the appointment was made, I will inquire as to why. Early in the initial meeting, I like to determine whether the client has familiarity with the probate process or has ever been a beneficiary or trustee of a trust.   If the client is updating an existing plan, the prior plan is reviewed.  I have conducted dozens of meetings where the existing plan was still appropriate.


When a will is used, a probate is usually necessary.  Probate is a legal process overseen by an official in the county of the decedent’s residence.  If disputes or unusual issues arise, a judge may need to become involved.  Most people want their families to  avoid governmental interference and  trips to the courthouse.  If  a family member is likely to be upset about the distribution of the estate, the probate process provides them an invitation to bring their grievances forward.  Most  families will need the assistance of an attorney to navigate the probate process.  Usually avoiding probate is a significant factor in selecting a trust over a will.


A will might be appropriate for leaving property to fiscally responsible adults.  If  the beneficiary is less responsible or too young, a trust would likely be more appropriate.  The size of the inheritance will also influence the choice.  Trusts can be creatively designed so that beneficiaries grow into their inheritances.  In the case of an individual with disabilities or behavioral issues, a trust may be the only reliable way to ensure the inheritance is properly administered.  Even for the perfect money manager, a trust maybe appropriate if the beneficiary is involved in a risky business or an potentially unstable marriage.


A trust-based estate plan will normally cost two to three times more than a will-base estate plan to establish.  But often times the will-based plan will cost more to administer upon death and will cause stress during the probate process.  A trust normally can be settled more quickly  and in a more informal manner than a will.  A value judgment needs to be made whether you want to save money now during the planning process at the ex financial and emotional expense of your family members upon your death.


The larger the estate, the more likely I will recommend a trust instead of a will.  But that does not  mean that large estate owners always need a trust.  The opposite is also true.  Individuals with a modest estate (under $300,000) may need trusts due to special circumstances.  In addition to the size of the estate, an understanding of the components of the estate is important.  If an individual owns real estate outside of Wisconsin, a trust usually will be the best approach.  If most of the assets can be distributed with the use of  beneficiary designations, a trust may not be necessary even for relatively large estates.  The best way to determine is to spend adequate time with an estate planning attorney with the knowledge to ask the right questions.  By getting to know the client’s financial and family situation, the path to the proper  plan should become apparent.


A son-in-law you don’t trust.  A grandchild that makes a rock star look thrifty. If you have family members that have undergone divorce, bankruptcy, or had an encounter with the criminal justice system, these are all details that need to be shared with your estate planning attorney.  If you have confronted some of these issues, a trust may again be more appropriate than a will.


A consultation with an experienced estate planning attorney will assist you to make the proper choice between a trust and a will.  It is my experience that for first time estate plans about one-third select will-based plans and the remainder trusts.  The most common factor for those selecting wills instead of trusts is the initial cost.  Eliminating cost as an issue, I believe a trust would be the appropriate choice for about 90% of the people I see.  As long as the client knows the pros and cons, I will prepare the plan of the client’s choice.  In all cases, any plan is better than no plan!






Selection of your agent is the most important decision made when completing your Health Care Power of Attorney (HCPOA).  Your agent will make  health care decisions for you when you are unable to make them for yourself. Before selecting the appropriate person, you should have a understanding of what the job is.  Once the position is understood, select the best candidate to fill the position. After selecting the person, obtain the agent’s consent to serve. Then educate your agent on your desires.  Also, select alternates to act if your first choice is unwilling or unable to serve. Finally, you need to properly implement your plan.


The job is to make health care decisions on your behalf if you are unable to make those decisions for yourself. The types of decisions can involve anything from routine health care to the termination of life sustaining treatment.  Here are some of the important qualifications for your health care agent.

  • Knowledge of your preferences and desires.
  • Willingness to honor your wishes rather than the agent’s desires.
  • Depending upon your age and mobility factors, available to attend health care appointments.
  • Must be a strong advocate for your wishes.
  • Emotionally tough enough to make difficult decisions.
  • Your agent must be able to withstand pressure from family members or friends that disagree with the decisions being made.

The job may require other qualifications, but this overview should give you sufficient information to make the proper selection.


Most of the time the appropriate choice for agent will be obvious.  Unlike financial agents where more than one may serve, you must select only one agent to act at a time. When no obvious choice exists or several choices seem equally appropriate, discussing the decision with an experience estate planning attorney can be very helpful. The following are some ideas I have shared with clients in the past about the selection. The following categories are listed in the order of usual selection.

  • SPOUSE-if you are married and your spouse is able to serve, usually you should name your spouse.  Even if your daughter, son, or best friend is a doctor or nurse, the spouse should normally be the decision maker.  The agent still should consult with those with more health care experience before making important decisions.  If you are in a long-term relationship with someone not your spouse, you should carefully determine whether that individual should be named.
  • ADULT CHILDREN-if no spouse is available to serve, adult children usually are the next choice.  When determining whether an adult child should serve, the job qualifications listed above should be carefully considered.  Young adults (18-30) may be bypassed due to the availability of other better choices in the next category.
  • PARENTS, SIBLINGS, NIECES AND NEPHEWS-family members are normally the next category  considered.  Since you have a long term history with these individuals, you should be in a good position to evaluate how they best meet the job qualifications.  When selecting parents, it is important to have an alternate agent of a younger age selected.
  • FRIENDS- a friend may be the appropriate choice.  Usually friends are selected after family members are either unavailable or lack the qualifications your friend may have.

Your choice should be reviewed periodically for appropriateness.  If you have young children when the documents are initially prepared, you may consider adding them as agent or alternate agent as they get older. I recommend naming at least two alternate agents. Keep in mind the age and health of the agent when selecting.


Once your agent consents to being named, the following steps should be taken to complete the process.

  • Consult an experienced estate planning attorney to have your HCPOA properly prepared and signed.
  • Discuss your health care preferences with your agent and your medical providers.
    • End-of-life treatment
    • Organ donation
    • When Do-Not-Resuscitate order is appropriate
    • Use of hospice
    • Pain control
    • Admission to a nursing home or other health care facility
  • Make sure your agent and medical professionals have access to your HCPOA
    • Provide agents a copy
    • Direct inclusion of your HCPOA in your medical record
    • Keep a copy in the glove compartment of your car or luggage when travelling
  • Periodically review your HCPOA for potential changes
    • Agent selection no longer appropriate
    • Addressing a new medical condition
    • Check local practices when permanently relocating to another state or spending significant time in another state.

Your entire estate plan including your HCPOA should be reviewed with an estate planning attorney every 2-3 years or sooner if circumstances change.  Failure to have properly prepared documents may result in an otherwise unnecessary and costly guardianship proceeding.


Using a form for a Health Care Power of Attorney is riskier than having an experienced estate planning attorney assist you in preparing the document.  Most common problems with self-prepared forms include failing to complete in a legally valid manner, making conflicting or unclear directions to your agent, or failing to provide adequate guidance.  I have personally reviewed hundreds of self-prepared legal forms.  Many of these forms have contained errors, omissions, and conflicting guidance.


A Health Care Power of Attorney (HCPOA) is a document which allows you to appoint an agent to make health care decisions for you if you are unable to make them for yourself.  By form, I am referring to a printed fill-in the blank or check the box document. Forms to prepare a HCPOA are available from many sources.  Many can be obtained for free.  In Wisconsin a form may be obtained from the Department of Health Services on their web page,  Forms are also available from several health care providers and other nonprofit public service organizations.


The following are some of the positive aspects of using the State of Wisconsin form:

  • It can be prepared for free.
  • If the form is completed according to the directions, you will have at least accomplished naming an agent to make health care decision on your behalf.
  • Your health care agent will be provided guidance regarding your wishes in certain limited situations.
  • It may help you to avoid a court guardianship proceeding.

The following are potential problems with using the State of Wisconsin form:

  • The form is not properly prepared and witnessed.
  • The “NO” box is selected regarding admission to a nursing home without understanding the consequences.
  • Guidance written in the “Statement of Desires, Special Provisions or Limitation” portion of the form conflicts with other parts of the form or provides unclear guidance.
  • Insufficient guidance is provided to your agent.  If no guidance is provided in a certain area, the agent should make the decision on “what he or she believes to be in [your] best interest.”  In other words, the agent is authorized to make the decision based on what he or she believes is in your best interest rather that what you would actually want.


First, the organizations that make these forms available should be complimented.  A great public service is being provided by educating the public to the importance of every adult having a HCPOA.  Many of the forms I have reviewed have include some well-drafted provisions.  They also have encouraged people to have important end of life discussions with their loved ones.  In most cases the use of one of these forms is preferable to not having a HCPOA at all.  The following are some of the issues I have observed regarding some of these available forms:

  • For Wisconsin residents, make sure the signing and witnessing of the form complies with Wisconsin law.
  • Watch out for provisions which allow a health care provider to limit the decisions of the health care agent.
  • Be aware that certain directives may conflict with each other.  One issue I have seen deals with the direction to treat curable conditions even when a terminal condition is present. I have reviewed many forms that state no treatment is desired if death is close but also state curable conditions should be treated.
  • The form may contain either too restrictive guidelines for the agent or lack of enough guidance to allow your agent to make the decision you would want.


You should have a HCPOA prepared by an experienced estate planning attorney as part of establishing a comprehensive estate plan.  By establishing a HCPOA at the same time as obtaining the other documents you need, the incremental cost should be less than if the HCPOA is obtained separately.  This cost of preparation is minimal compared to the thousands of dollars that may be saved in unnecessary legal fees or medical costs for unwanted care.

In an emergency you may need to execute a form without the assistance of an attorney.  In those cases make sure to follow the directions carefully and then have your document reviewed by an attorney as soon as possible.







Every adult in Wisconsin needs at least a basic estate plan.  Yes, even a college student buried in debt needs at least two documents.  These documents are a health care power of attorney and a financial power of attorney.  The focus of this basic planning is to ensure the student has someone to make health care decisions or manage finances in case of a period of incapacity.  This article will first provide the Wisconsin definitions for incapacity.  Then I will discuss the importance of naming an agent to make decisions for health care followed by the authority to handle financial matters.


The standards for health care and finances are very similar and can be summarized as the inability to make and communicate an educated decision about the topic in question.  In real life, a college student would most likely fall into this situation due to a temporary condition caused by an accident or a medical problem.  Most parents are lucky in that these situations rarely arise.  But if they did, a few documents can save cost, time, and anxiety.  At the end of this article, the specific definitions are provided.


Wisconsin does not have a law allowing parents to make health care decisions for their adult children.  The legal remedy is a guardianship proceeding.  In a recent Wisconsin case, a young adult was seriously injured in car accident.  The child was unable to make medical decisions due to the injuries.  As treatment options were being considered, no one had the legal authority to make a decision.  So instead of being able to concentrate solely on the treatment plan for their child, the parents also needed to be engaged with the legal system to gain the legal authority to make decisions.  This guardianship process is costly and time consuming.  If the adult child had completed a health care power of attorney, the court guardianship would have been unnecessary.  Even if the young adult was married, the spouse also would have lacked legal authority and the guardianship proceedings still would have been necessary.

If the young adult had a health care power of attorney, an agent would have been appointed to make the important medical decisions without the need for a guardianship.  The health care agent would have been selected by the child, not a guardian selected by a judge.  The child also would have been able to provide guidelines to be followed by the health care agent.  The parents then could have been focused on the medical issues without also needing to worry about legal proceedings.


Most college-age adults want to exercise independence.  Banks accounts, cars, rental agreements are often in the child’s name.  Schools also have very strict privacy rules.  Without a power of attorney for finances, a parent will be hampered in the ability to manage their children’s financial matters.  Banks would be unable to legally share financial information with the parents or other family members.


The simple and low-cost solution to this problem is for the college student to meet with an attorney to have these two types of powers of attorney prepared.  In most cases the student will name the parents followed by adult siblings or other relatives as the agents.  Many of my clients have seen the importance of this advice and as a result asked me to prepare these documents at the same time the parents’ documents are being prepared or if the children are still underage as an eighteenth birthday present for their child.


“Incapacity ” means the inability to receive and evaluate information effectively or to communicate decisions to such an extent that the individual lacks the capacity to manage his or her health care decisions. Wis. Stat. § 155.01(8).


“Incapacity ” means the inability of an individual to manage property, finances, or business affairs because the individual  . . . has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance. Wis. Stat. § 244.02(7).



A basic estate plan covers incapacity planning and the disposition of property upon death.  Most individuals when thinking about estate planning planning only focus on the later part–death.  When I meet with clients, I always start with the incapacity planning first.  The initial focus should be on matters that can help you while you are still alive.  If you are unable to make decisions about your property and your health care, it is important that you have legally delegated the authority to an agent to make those decisions on your behalf.  Exploration of the the various ways of transferring property upon your death comes next.  The basic tools for accomplishing these goals are the power of attorney for finances, the power of attorney for health care, and a will.


I use two planning tools for health care matters: a HIPAA authorization and a Health Care Power of Attorney and Living Will.  The HIPAA authorization is required due to the passage in Congress of a law entitled the Health Insurance Portability and Accountability Act.  This law is referred to as HIPAA.  You would never know from the title of the law that it includes the provisions under which your health information may be released.  This authorization is prepared in order for you to authorize individuals access to your medical records and to enable health care providers to discuss your protected health care information with those you designate in this document.  In most cases you will want to list your spouse and adult children if applicable.  You may also want to expand this list to include parents and friends.  This authorization is limited to making information available to the authorized individuals.  It does not provide the authority to make decisions on your behalf.  The Health Care Power of Attorney and Living Will serves two basic purposes: it names who can make health care decisions for you if you are unable to make them for yourself and it states your preferences for end of life treatment.  You may also wish to address organ donation.  Even though forms for both a Health Care Power of Attorney and Living Will are available through the State of Wisconsin, many pitfalls exist in their proper preparation.


Having a financial power of attorney allows you to name an agent to make financial decisions on your behalf.  Without this document a guardianship would be necessary to grant this authority if you are unable to make decisions for yourself.  During the planning process, you select the best agent and alternate agents to serve in this role.  The extent of the authority whether limited or very broad is also determined.  As an individual ages, additional powers may also be selected to provide for Medicaid planning.  Again, basic forms available through the State of Wisconsin can provide a false sense of security since they are lacking in many provisions an experience estate planner would include.


Property is usually transferred upon death through the use of one or more of the following tools:  will, joint tenancy, beneficiary designation including payable upon death or transfer upon death directives, and trusts.  A will is commonly the starting point for families with young children as the appropriate document to name guardians.  Absent that need, deciding the disposition of your property upon your death and the nomination of a personal representative to administer your estate are the will’s other basic purposes.  Depending on your family situation, a will may or may not be an appropriate planning tool for you.  Many people believe that a will is the appropriate starting point because they are familiar with the basic concept of getting a will.

In conclusion, most planning for incapacity involves the same documents.  The complexity of these documents (powers of attorney for health care and property) varies based upon your situation.  The decision, however, as to whether a will is the appropriate tool upon which to transfer property upon death is not very straightforward.  Whether a will should be used in your estate plan should only be determined with the assistance of a experience estate planning attorney.

I prefer not to overburden a prospective estate planning client with unnecessary homework prior to our initial meeting.  Procrastination is the biggest obstacle to planning.  My approach is to avoid providing an additional obstacle to getting the process started. So how much preparation is necessary to make the meeting productive for all of the participants.  First, I will describe the two extremes of preparation: no preparation and over-preparation. I will then conclude with describing the middle ground which usually leads to a very productive meeting.


It very seldom occurs that a meeting is totally unproductive due to a lack of preparation. The biggest cause of an unproductive meeting is a lack of attendance by all the necessary participants.

For married couples, both spouses need to be present.

  • The only exceptions to this rule are the infrequent situation where each spouse uses their own separate estate planning attorney or where illness or disability make it impractical.  If that might be the case, it should be discussed at the time the appointment is scheduled.
  • If  a spouse is ill or disabled, often arrangements can be made to meet at that spouse’s location.  Then both spouses can be available together.
  • When one spouse claims they can speak for another spouse and attends alone, usually a second meeting with the other spouse is also needed.
  • Our firm’s policy is that both spouses must be present unless a justification can be provided at the time the meeting is scheduled.

Another potential situation with a missing participant is when a third party schedules a meeting to discuss planning for someone else.  Usually it is a child trying to initiate the planning for a parent. It is critical to effective planning that the parent or parents participate from the start.  This safeguards the process to ensure the plan is being prepared according to the parents’ wishes not the child’s.

The next most common cause of an unproductive meeting due to the lack of preparation is to arrive at the meeting without bringing any of the requested information.

  • Our firm provides a meeting confirmation letter or email which lists what should be brought.
  •  It is understood that sometimes everything requested might not be available.  It is just requested that you try to do your best.


If a client over-prepares for the initial meeting, it is usually due to a misunderstanding of the estate planning process.  The goals of this article is to explain the level of  preparation that gives the planning process the best opportunity to succeed.  The over-prepared client is the one that believes they need to have all of their estate planning questions resolved before the initial meeting.  The estate planners job is to guide the client through the process.   You are not expected to have all your issues resolved before you arrive.  It can be helpful to read a basic guide or attend an educational seminar.  Our firm provides both.  Still these steps are not required before we meet.  Often times reading multiple books, articles, and attending seminar after seminar is just another form of procrastination.  The best source of estate planning information should be the attorney you will be meeting with.


Preparation for the initial estate planning consultation falls into three basic categories: people, places, and things.  Our firm and most firms provide an organizer to complete before the initial meeting which captures all three of these areas.

  • People:  The estate planner needs to obtain biographical data on you and your family members. By having this information available, time can be spent learning  about you and these individuals rather than spending the appointment time copying names, addresses and birthdays.
  • Places: The addresses of the real estate you own.
  • Things:  A listing of your bank accounts, investment accounts, and retirement accounts.  If you have existing estate planning documents, they should be provided for review.  The estate planning attorney needs to know this information to make the best recommendation for your estate plan.

You should also be prepared to discuss: who you trust to handle your estate (property) and health care decisions if you are unable to make them yourself; who should receive your property upon your death; and any other concerns you might have.  This preparation can usually be completed in a few hours.  In addition to preparing for your meeting, you might also be surprised to discover how much wealth you have accumulated.  But even if your estate is modest, an experienced estate planner will be able to recommend the appropriate plan for you.

I know some excellent plumbers and electricians that work in the area where I live.  I occasionally use their services. But I almost always try to do it myself first.  I am usually very careful before I start a project by first reviewing videos on YouTube or reading a how to manual.  Many suppliers of parts have detailed videos or customer service representatives to provide guidance.  I acknowledge that many self-help or do it yourself resources also are available for wills, trusts, and powers of attorney.  Free forms are even available from various State of Wisconsin websites. So, I feel like a bit of a hypocrite when I say the answer to the question should you do it yourself is no.   I feel less of a hypocrite when I recall that after my son was born and I was already had been an attorney for five years, I retained a law school classmate of mine to prepare my first will. The following are my three best reasons why estate planning is not a do it yourself project.


Dedicated estate planning attorneys spend countless hours learning how to counsel clients and prepare wills, trusts, and powers of attorney.  Before I attempted to prepare my first will for a client, I spent three years in law school and over a hundred hours attending specialized classes on estate planning and reviewing materials from legal publishers.  Before preparing my first revocable living trust, I attended forty hours of training from leaders in the field of trust planning.   Despite all this training, I was still apprehensive about the initial plans that I prepared.  To make sure my clients were being provided quality service, I belonged an organization that provided me with access to nationally recognized experts in the field.  Even after almost twenty years in the field, I still occasionally need to bounce ideas off of other accomplished estate planners.

During almost every initial meeting I have with clients, I hear in response to several of my questions,”I never thought of that.”  Since most non-lawyers would not know where to start or end, I recommend an experienced estate planning attorney to lead you on your way.  Handling issues involving underage beneficiaries (minor children and grandchildren), beneficiaries with disabilities, and second marriages require very special attention.


Mistakes on self-prepared documents range from not having the documents properly witnessed to using documents not appropriate for Wisconsin residents.  Improperly prepared documents are normally unenforceable.  Even if a will or trust is perfectly prepared,  other issues may not have been properly considered.  For instance, failing to update a 401(k) beneficiary designation following a divorce can lead to an ex-spouse receiving the proceeds instead of your children upon your death.  An experience estate planning attorney will know that coordination of matters outside the usual planning documents can have real significance.  An effective estate plan needs to coordinate the estate planning documents with beneficiary designations for life insurance, retirements accounts, and employee benefits.  An improperly prepared beneficiary designation could lead to an avoidable probate proceeding costing thousands of dollars and months of delay.  Worse than the financial cost could be the emotional cost of the wrong person inheriting your estate.


If you inquire, an estate planning attorney who will meet with you initially at no cost should be available in your area.  So the cost to find out the fee for an estate plan should not discourage you from seeking professional assistance.  In order to make the best use of your time and the attorney’s time, please read my entry on how to prepare for an initial estate planning consultation.

My policy is to provide a free initial consultation.  At the end of the initial meeting, you will be quoted a fixed fee for the services which are recommended.  I usually spend up to 90 minutes with a single individual and 2-3 hours with a married couple. At the end of the meeting I make recommendations and quote a fixed fee.  I urge you to contact an experienced estate planning attorney to assist you with preparation of a plan. If you live in Southeastern Wisconsin, feel free to contact me if you are interested in learning more.