Find Answers To Commonly-Asked Legal Questions Here. If You Don't Find What You're Looking For, Reach Out To Schedule A Consultation With One Of Our Attorneys!

Family Law

Divorce And Property Division

Who Can Get Divorced In Wisconsin?

Parties are eligible to begin a divorce action in Wisconsin if one spouse has lived in the state for at least six months and in the county that the divorce will be filed for at least 30 days prior to the commencement of the action.

Does The Length Of A Marriage Affect The Divorce Process?

As with many legal matters, it depends. When it comes to property division, Wisconsin is a community property state. This means that, regardless of the length of the marriage, any property acquired during the marriage can be subject to 50/50 division between the parties during divorce. While the length of the marriage doesn’t affect this principle, it could affect what specific assets are divided. Generally, assets acquired before the marriage are considered individual property, and thus are not subject to 50/50 division.

Additionally, even in long-term marriages, if one of the parties can prove demonstrate that they essentially unilaterally contributed to a major asset that was not marital property, such as by making mortgage payments on a property that was deeded to the other party, the Court may award compensation to offset this financial inequity.

In another scenario, if a marriage last significantly shorter than average, a Court could decide to allow each party to keep what they have acquired, even during the marriage, provided that the marital property acquired was minimal.

It is worth noting that debts as well as assets can be considered marital property in Wisconsin. Debt accrued during the marriage, even if amassed largely by one spouse, is treated as joint debt. This means that it is also factored into the 50/50 division, creditors can pursue either party for money owed.

How Do Community Property States Differ From Equitable Distribution States?

Some states, including Wisconsin, Illinois, Minnesota, and 20 other states, are community property states, meaning that marital property must be split 50/50 between the parties in the event of divorce. Legally, community property includes all assets and debts obtained by either or both parties during the marriage and while living in a community property state. Community property, also known as marital property, can be tangible, such as with real estate, or intangible, such as funds held in retirement or bank accounts. Community property laws aim to simplify divorces and legal separations and reduce time needed to settle disputes between the parties.

Other states, such as New York, Ohio, and Michigan, use equitable distribution principles to govern property division during divorce. Equitable distribution takes into account each individual’s financial circumstances, future earning potential, spending/saving habits, and other specifics when deciding how marital assets and debts should be divided. These states acknowledge that parties in a divorce aren’t identical, and thus their circumstances shouldn’t be held equal for the purposes of divorce. Instead, equitable distribution states prioritize fairness over a 50/50 split of net assets between the parties. For example, if one party in a divorce is younger and more educated than the other, they would be held responsible for a larger share of the marital debt because they most probably have higher future earning potential and therefore greater ability to satisfy the obligation.

My Estranged Spouse And I Are Not Amicable. Will We Have To Talk To Each Other?

While parties must communicate in order to reach a settlement that is acceptable to both parties in order to finalize a divorce in nearly all cases, these discussions often go through the couple’s respective attorneys. Thus, it is vital for people seeking divorce to retain reputable counsel early in the process. Each attorney in the action advocates only for their client’s best interests from filing to final judgment, without being affected by acrimony between the parties.

If the parties are unable to reach a compromise on the division of marital property, they will often go through mediation. During this process, the parties, their respective attorneys, and a neutral third party such as a counselor to discuss the issues to be resolved before the divorce can be finalized. The mediator seeks to guide the parties towards a solution to these issues, and encourages the parties to communicate effectively, if only to finalize the divorce faster. If mediation fails, the matter goes to trial, and a judge hears the facts and decides how each issue should be settled. Trial is expensive; each party must pay additional attorney’s fees for their lawyer’s preparation for and appearance in Court. Additionally, each person will undoubtedly be displeased with rulings in favor of their spouse, generating more animosity between the parties and creating the potential for additional legal fees if any aspects of the divorce should be pursued in post-judgment.

Discussing possible compromises with an attorney at the outset of the divorce action and keeping communication through counsel as much as possible facilitates quicker and more cost-effective conversations between the parties.

My Spouse And I Are Divorcing, But Never Signed A Prenuptial Agreement. Will All Our Assets Get Divided 50/50?

While division of assets can vary from case to case, Wisconsin’s designation as a marital property state means that more often than not, property acquired over the course of the marriage is subject to 50/50 division during settlement absent a prenuptial agreement.

However, going into the divorce process with an attorney increases the likelihood that, even if the parties did not draft a prenuptial agreement, assets and debts accrued during the marriage can be divided according to terms that are acceptable to both parties.

If My Spouse And I Divorce, How Do We Decide Who Keeps The Dog?

Jointly-owned pets are considered property in Wisconsin, meaning that custody is usually awarded to one party or the other. Since pets are usually viewed as members of the family rather than property, taking ownership away from one person in favor of the other is a common point of contrition. Although Wisconsin is not yet among the states that typically allow custody agreements for pets, in many situations parties can work together or compromise via counsel to determine days and times for the non-custodial party to visit with the pet at a pre-determined location.

What Are The Differences Between Spousal Support, Alimony, And Maintenance?

Spousal support and alimony refer to the same thing, money to be paid from one party to another during or following a divorce, but the terms have different connotations for some. Spousal support invokes the understanding that one spouse would be at a significant disadvantage without the continued financial support of the other. The term alimony, on the other hand, is more commonly used in at-fault states, and is sometimes viewed as a “punishment” for bringing about the end of one’s marriage. However, because payments from one spouse to the other are Court-ordered following careful consideration of the parties’ finances, the term alimony is growing outdated. In Wisconsin, this payment is known as maintenance, again reinforcing the idea that it exists to prevent one party in a divorce from becoming destitute following the loss of the other party’s financial contribution.

Legal Separation

What Is Legal Separation?

Legal separation can be thought of as a “financial divorce”. During a legal separation, parties divide their assets and debts as they would during the divorce process, enabling them to make financial decisions independently of one another, but are also still considered legally married. Parties who are legally separated also do not accrue marital debts or assets, and have the option to file individual tax returns. There are a number of reasons a couple might choose a legal separation over a divorce, including:

  • Receiving spousal health care or insurance benefits (some insurance providers make a distinction between married and legally separated couples when determining coverage, so this is not always an option).
  • Possibilities of reconciliation or undergoing counseling or other measures to repair the relationship.
  • Sponsoring (or being sponsored by) their spouse in an immigration matter
  • Filing joint tax returns
  • Religious restrictions on divorce
  • While legal separation is final, it can also be reversed unlike a divorce. If one or both parties decides that they would like to reconcile, they can petition the Court, after having been separated for at least a year, to reverse the legal separation. Alternatively, if one or both parties decide that they would like to be divorced, they may petition the Court, provided that they have been legally separated for at least a year, to convert the legal separation to a divorce.

    How Are Legal Separation And Divorce Different?

    While legal separation involves decisions on the same issues as are discussed during a divorce, it does not result in the end of a marriage. Couples can restore their marriage at any time if they reconcile, and neither spouse is permitted to marry someone else while the parties are legally separated. Additionally, at the outset of the process, each party is required to explain to the Court why they are seeking a legal separation rather than a divorce.

    Legal separation is common in cases where parties disagree on whether their marriage can be “saved” or are going through measures such as counselling to work on their relationship but those measures are likely to be unsuccessful.

    Do I Need Legal Representation In My Divorce Or Legal Separation?

    Although parties can go through a divorce or legal separation without respective attorneys if they so choose, doing this tends to draw out the process. Even if parties are amicable at the beginning of their separation, dividing up marital property and determining monetary obligations that the parties have to each other often causes tension to rise and communication to break down. When this occurs, counsel is vital.

    Is Legal Separation The Same As A Medicaid Divorce?

    Although legal separation was previously used as an alternative to divorce that allowed a couple living separately to continue to receive the legal benefits of marriage, such as through spousal insurance or health care benefits while still being able to separate their assets to meet asset holding limits for eligibility purposes, many insurance providers, including Medicaid, have become aware of this tactic. Many providers no longer make distinctions between marriage and legal separation when determining coverage eligibility. Thus, if one member of a legally-separated couple needs to meet income requirements to qualify for Medicaid, their spouse’s income would still be counted for Medicaid eligibility purposes unless another means, such as a trust, is used to protect “excess” income from being counted for Medicaid purposes.

    Because of the increased use of trusts and other means to protect a couple’s assets during qualification, Medicaid divorces are becoming less common. Establishing methods to convert countable assets into non-countable ones for Medicaid eligibility, discussed in depth on our Elder Law and Medicaid Planning page, has become vital in preparing for the eventuality of needing long-term care through Medicaid regardless of marital status.


    What Are The Grounds For Annulment?

    Annulment, also known as nullification, requires concrete evidence that a marriage was never legal and therefore never existed. In Wisconsin, a marriage can be declared null and void if one or more of the following conditions apply:

  • One or both parties was incapable of consenting to the marriage because they were under the age of 18, or, if one or both parties was 16 or 17, they cannot demonstrate that they had parental consent to get married at the time that the marriage occurred.
  • One or both parties were incapable of consenting to the marriage at the time that it occurred due to mental defect caused by drug or alcohol use, mental illness, or incapacity.
  • One or both parties was coerced into the marriage through fraud or false pretenses.
  • One or both parties was already married to someone else when they sought to be married again. This second marriage would be considered invalid.
  • One or both parties was divorced from a previous spouse six months or less prior to the date of their remarriage.
  • One or both parties is impotent and did not inform their spouse of this prior to the marriage
  • If one or more of the above criteria is pertinent, a person may have grounds to petition the Court for a hearing on the annulment of the marriage. If a hearing is granted, parties will have the opportunity to prove, via credible witnesses and evidence, that the marriage should be annulled. If the Court grants the annulment, an order is issued affirming that the marriage is illegal and is therefore null and void. If a marriage is annulled, it is as though it never existed.

    **Note: Religious annulment is not legally valid in the state of Wisconsin. Even if parties successfully have their marriage nullified by a religious authority, they must still petition the Court for an annulment that will be recognized under state law.

    Child Support, Custody, And Visitation

    My Child's Other Parent Hasn't Been Involved In Caring For Them. Does This Affect Our Respective Placements?

    Wisconsin law assumes that it is in a child’s best interests to have joint placement with both parents. However, custody and placement of minors are determined by a Court order in situations where parents cannot agree on a placement schedule, or when equal placement isn’t feasible. As the child’s health, happiness, and safety are of utmost importance, the Court must consider the child’s wishes, the frequency of meaningful interactions that the child has had with each parent, and the relationship between the child and other members of each respective household when determining placement. Thus, if one parent can provide the Court with sufficient evidence that they are more interested and involved in their child’s care than the child’s other parent, the Court is more likely to find that the more present parent should be awarded primary placement.

    My Child's Other Parent Lives In A Different State. Are They Entitled To Periods of Placement?

    In Wisconsin, parties with shared placement are entitled to enforce their periods of placement even if they live in different states. Parents are often able to work out agreements in such scenarios regarding travel costs and meeting locations with the assistance of their respective attorneys and the Court. There are restrictions on distance if the parents have joint placement, however. If one party wants to relocate more than 100 miles from where they lived when the original placement order was entered, they are required to let the other party know via certified mail. The party receiving the notice must provide their approval or objection to the move. If there is an objection, the parties undergo Court-ordered mediation, where they attempt to reach an agreement regarding the child’s placement schedule. If mediation is unsuccessful, the matter is set for hearing and a guardian ad litem is appointed to represent the minor’s best interests.

    Similarly, one parent cannot choose to move the child out of state without consulting the parent with whom custody is shared. If either parent wants to move the child more than 100 miles away from the other parent’s residence, they must do so by filing a motion with the Court. The motion must provide a clear plan for the continuation of the child’s periods of placement with the other parent, and should also demonstrate to the Court that the relationship between the child and the other parent will have opportunity to grow despite the move.

    How Do I Seek Child Support From My Child's Other Parent?

    In Wisconsin, child support is determined using a formula, so the amount owed from one parent to the other is usually determined through consideration of each parent’s respective income, number of overnight placements with the child, and presence of other minors in the household. Either parent can submit a request for child support through the Court or via the state child support agency. Applications for support require each parent to submit financial and household information, as well as supporting documentation like prior child support orders or paternity acknowledgment forms, if applicable. After the Court reviews each parent’s situation, it will issue an order for child support. Typically, child support payments are collected through wage garnishment, but payments can also be made directly to the Wisconsin Support Collection Trust Fund, the entity responsible for distributing support payments.

    I Don't Want My Child Around Their Other Parent's New Partner. What Can I Do?

    By Wisconsin statutes, the Court cannot choose to place a child primarily with one parent over the other without reason. Similarly, one parent cannot elect to withhold the child simply because they “don’t like” the other parent’s new partner. However, if they can demonstrate to the Court that the new partner’s presence has a negative effect on the child’s mental or physical health, happiness, or safety, they have the option to request that the Court order that the significant other may not be present during periods of placement.

    My Child's Grandparents Want Visitation Rights. Is That Allowed?

    Grandparents are typically only awarded visitation rights in Wisconsin if certain criteria apply. Under the Grandparents Visitation Statute, grandparents, step-parents, or anyone who has an ongoing parent-child relationship with a minor who is not their biological child may petition the Court for visitation rights. The matter will then be scheduled for a hearing, and the child’s biological parents must be provided with a Notice of Hearing so that they may attend and participate if they so choose. During the hearing, the grandparent or other individual will be given the opportunity to testify, call witnesses, and introduce supporting documentation. The Court will then decide, based on this hearing, if scheduled visitation is in the child’s best interests.

    If My Spouse Has Children From A Previous Relationship, Can I Adopt Them?

    Parties wishing to adopt the minor children of their legal spouse can do so via stepparent adoption. There are four main parts to a stepparent adoption in Wisconsin:

  • Termination of parental rights by the other parent: The non-custodial parent must agree to the adoption, and must subsequently sign over their rights to be responsible for and make decisions on behalf of the child.
  • Petition to adopt: The person wishing to adopt the child must file a petition asking the Court to grant an Order for Adoption. The petition lists the person’s relationship to the child in question, verifies that the other parent’s rights have been terminated if they are still living, and confirms that the adoption is in the child’s best interests.
  • Adoption agency investigation: Before the adoption is granted, a licensed adoption agency will conduct a study of the child’s anticipated living arrangements. In Wisconsin, this is called a Structured Analysis Family Evaluation (SAFE) home study. It is used to ensure that the the child to be adopted will be living in an environment that is consistent with their physical, mental, and emotional needs.
  • If each of these phases is completed successfully and no other concerns are raised, the Court may rule to grant the Order for Adoption.

    Paternity Acknowledgment

    What Does Paternity Acknowledgment Mean?

    Paternity Acknowledgment is the process of legally naming a father on a child’s birth certificate when the parents are unmarried. It is often beneficial regardless of the father’s anticipated involvement in the child’s life. Paternity acknowledgment does not require the parents to live together or commit to a relationship.

    How Is Paternity Acknowledgment Beneficial?

    Paternity acknowledgment facilitates a healthy parent-child relationship and fosters a sense of family for both the father and child. Paternity acknowledgment could encourage the child’s physical health as well. It affords the child rights to their father’s health insurance coverage and allows medical professionals access to both parents’ health records so that the child receives effective care.

    Paternity acknowledgment also protects parties’ legal rights. After paternity is acknowledged, the father can petition the Court for custody and placement of the child, and is eligible to receive child support accordingly. In turn, the child’s rights are protected until they reach the age of majority. They are entitled to the father’s financial and emotional support until age 18, and are eligible for shares of inheritance, pension, Social Security, or other benefits upon the father’s death.

    What Are The Different Ways To Establish Paternity?

  • Voluntary Acknowledgment of Paternity: This is the most common way to establish paternity. A Voluntary Acknowledgment of Paternity form is typically completed shortly after the birth of the child, but can be filed with the Department of Vital Records any time before the child turns 19. Signing a Voluntary Paternity Acknowledgment means that the father consents to being listed on the child’s birth certificate and can legally make decisions on the child’s behalf. It also gives the father the ability to petition the Court for legal custody or for periods of placement if the parents’ relationship ends.Voluntary Acknowledgments of Paternity can be rescinded within 60 days of filing if either parent changes their mind or has doubts about who should be named the father on a child’s birth certificate. However, no one should agree to sign the form if there is a question about the father’s identity. After the 60-day period, genetic testing can be done to ascertain the paternity and amend the Voluntary Paternity Acknowledgment form if necessary.
  • Acknowledgment of a Marital Child: Another common way to establish paternity is by filing an Acknowledgment of a Marital Child form with the state Department of Vital Records. Similar to a Voluntary Paternity Acknowledgment, an Acknowledgment of Marital Child is used when parties were in a relationship when a child was conceived but did not get married until after the child’s birth. Both parents must sign the form, which then allows the father’s name to appear on the birth certificate.
  • Legal Action: In cases where paternity is uncertain or contested, a mother, alleged father, grandparent, legal guardian, physical custodian, or appointed guardian ad litem can petition the Court for a hearing on the matter until the child reaches age 19. After they reach the age of majority, the child can petition the Court for a determination on their own paternity. If a hearing is scheduled, the alleged father should attend, and may retain an attorney to represent him. Often, a guardian ad litem is appointed to represent the best interests of the child. At the hearing, the Court will hear the facts and applicable testimony from the parties or their counsel, and will then make a determination as to the child’s paternity. If a judgment cannot be reached through testimony alone, the Court will order genetic testing to settle the matter.
  • Genetic Testing: When paternity is questioned or contested and parties want to definitively identify the father, the Court may order genetic testing to determine a father’s identity, or the state child support agency can file a subpoena with the Court to initiate genetic testing on behalf of someone seeking child support. Parties can also have paternity testing done through a private lab of their choosing, without going through the Court or child support agency, but will likely have to demonstrate that the private test met Court accuracy standards. Genetic paternity testing is done via a blood test or cheek swab done on the mother, alleged father, and child, respectively. During each test, DNA is extracted from cells obtained from each party and used to determine the likelihood of a relationship. In order to definitively establish paternity, the DNA test must show with 99% or higher probability that there is a parent-child relationship between the father and child.
  • Who Can File A Petition To Establish Paternity?

    Although only a child’s parents can acknowledge paternity, anyone who is considered an interested party on behalf of the child can petition the Court for paternity establishment. Interested parties include:

  • The child’s biological mother
  • The state child support agency
  • An attorney appointed as guardian ad litem to represent the child’s best interests
  • The alleged father
  • Someone having custody of the child
  • The child’s grandparents, provided that they have custody of the mother or alleged father
  • The child themselves, if they are 18 or older
  • Does Paternity Have to Be Established If A Child Has Two Mothers?

    Paternity laws in Wisconsin apply to any person who became a parent with another person, regardless of either party’s gender. Thus, same-sex couples have the same ability as heterosexual couples to sign a Voluntary Paternity Acknowledgment or Acknowledgment of a Marital Child form to have their name listed on the birth certificate of any child born during the relationship.

    Likewise, although Wisconsin law assumes that a ‘husband and wife’ will be adopting a child, married people of any gender can adopt a child together. During the adoption process, the child’s biological parents will sign over their parental rights to the adoptive parents. Then, once the Court issues a certified adoption order, both adoptive parents can put their names on the child’s updated birth certificate.

    In short, although the language used in Wisconsin statutes assumes that parties are heterosexual, parents in same-sex relationships have the same ability to establish themselves as a child’s parents. If neither of the parents is the child’s “father”, paternity does not have to be established.

    What Is Marital Presumption?

    By Wisconsin state law, a man is automatically assumed to be a child’s father if he and the child’s mother were married to each other at the time the child was conceived. This is known as Marital Presumption of Parentage or Marital Presumption of Legitimacy.

    Marital presumption is long-standing and exists in some form in every U.S. state, yet it undoubtedly makes some generalizations. It was established out of necessity, as genetic paternity testing had not yet been invented. Now though, technology has evolved family structures have become more diverse as well. In response, marital presumption is changing as well. While it still applies to assumed paternity, marital presumption has been expanded since its inception to apply to the legal spouse of anyone who gives birth even if they are not biologically related to the child.

    Prenuptial Agreements

    Are Prenuptial Agreements Required To Get Married?

    Prenuptial agreements must be entered into voluntarily to be considered valid in any Court in the United States, and are thus not required to participate in a legal marriage ceremony or receive a marriage license. While engaged couples are encouraged to have a prenup drafted before they marry, they cannot be required to do so as a condition of marriage, as this would be considered coercion.

    What Must Be Included In A Prenuptial Agreement?

    A prenuptial agreement is a legal document like any other. As such, it must contain specific terms concisely laid out in a format that is admissible in any Court in the United States. Legal counsel is required to ensure that the document is carried out correctly, that the parties are not bound by inequitable terms, and that the contract is indeed valid. At minimum, an enforceable marital property agreement must include the following:

  • Full Financial Disclosure: This aspect of a marital property agreement guarantees that each party has equal information about their spouse’s financial situation going into the marriage. Each party must list the true value of all assets and debts belonging to them, including any property holdings, expected inheritance, and obligations to people other than their spouse. This information sheds light on each party’s realistic financial contribution to the marriage, and delineates what should not be considered marital property. If the spouses so choose, they may also include instructions for the division of marital property in the event of legal separation or divorce.
  • Voluntary Participation: For a marital property agreement to be enforceable, each party must enter into it of their own free will. One spouse may not coerce the other into signing a prenup with threats, like “I won’t marry you unless you sign this!”. Each party must have full understanding of the terms of the agreement, and must be given adequate time to review and sign it. Because a prenup is a legal contract involving compromise, each spouse is encouraged to seek their own counsel to ensure fair representation in the document and understanding of any rights waived by its terms.
  • Equitable Provisions: For a prenuptial agreement to be accepted in Court, it must afford each party equal consideration. This means that the contract can’t be unjustly skewed to favor either spouse. While marital property is typically divided 50/50 in a divorce or legal separation, a prenup outlines terms for deviation from community property laws. In so doing, it must take into account what each party can reasonably be expected to contribute to the marriage given their current assets and debts and allowing a realistic estimate of their earning potential over the life of the marriage. Many factors go into the determination of each spouse’s earning potential, including age, overall mental and physical health, and education level. Expected contributions by one party to the other’s increased earning potential, such as by financing higher education, are also considered when putting together a snapshot of each spouse’s obligation to the marriage.
  • Adequate Time to Enforce: Each party must have enough time to review, understand, and sign the marital property agreement. The exact amount of time to be given is left up to what is considered reasonable, that is, what would generally be considered enough time to sufficiently review a contract. Either spouse would be justified, and their rights protected, in refusing to sign a prenup if it was presented to them with inadequate notice, for example 24 hours before the wedding ceremony was to take place.
  • Can Prenuptial Agreements Be Customized?

    Outside of the required criteria, prenuptial agreements are highly customizable according to the couple’s wishes and respective financial circumstances. Parties may choose to incorporate language pertaining to ownership of specific assets in a sunset clause, for example. They could include language that a business or other major asset owned and operated by one spouse cannot be liquidated and divided as marital property if the parties file for divorce or legal separation less than 10 years after the date of marriage.

    Parties may also choose to include an infidelity clause in their contract. Contrary to popular belief, cheating does not automatically render a marital property agreement null and void. Therefore, infidelity, or cheating, clauses include provisions for how the division of assets outlined in the body of the prenup will change if one party is unfaithful. In order to be enforceable, the clause must define exactly what should be considered infidelity, so that actions that would modify the terms of the prenup are clear. Additionally, in order to enforce an infidelity clause, one party would have to provide sufficient proof that the other committed actions that were in violation of the prenup’s terms.

    One scenario that a prenuptial agreement cannot set advance framework for is child support, custody, or placement of any children born to the parties during the marriage. Children are not considered marital property, and have their own rights that are protected by law. Any determination regarding living arrangements and monetary support of any minor children must be made by the Court at the time that the couple is going through divorce or legal separation.

    Can My Fiancé And I Draft A Prenuptial Agreement Without An Attorney?

    Although there are a myriad of online sources that claim to allow couples to draft a prenup without a lawyer, doing so isn’t advised. A prenuptial agreement is a legal document like any other. As such, it must contain specific terms concisely laid out in a format that is admissible in any Court in the United States. Legal counsel is required to ensure that the document is carried out correctly, that the parties are not bound by inequitable terms, and that the contract is indeed valid.

    Restraining Orders

    What Are The Different Types of Restraining Order?

    In Wisconsin, there are four main types of restraining order, differentiated by who is petitioning and what actions are being alleged:

  • Domestic Abuse: The Petitioner has suffered, or has been credibly threatened with, physical pain, injury, sexual assault intentionally inflicted by another adult, or another adult stalked them, intentionally damaged their property, or threatened to do so.
  • Harassment: Similar to domestic abuse restraining orders, but with a broader definition. The Petitioner alleges that another adult kicked, hit, shoved, sexually assaulted, or otherwise physically abused them, or made credible threats to do so, or that another adult stalked them or is threatening to do so. Harassment restraining orders may also be granted if a Petitioner alleges that someone engaged in, or has threatened to engage in, abuse towards a minor.
  • Child Abuse: The Petitioner alleges that another adult physically injured, neglected, trafficked, sexually assaulted, or otherwise exploited a minor, or made credible threats to do so.
  • Individual at Risk: The Petitioner wishes to prevent someone who is elderly or who has a mental or physical condition that impairs their judgment or ability to care for themselves from being physically, mentally, or emotionally abused, being subjected to treatments without their consent, being taken advantage of financially, or being unnecessarily confined or restrained. It can also be used to prevent at-risk individuals from unwittingly neglecting their own needs because they are unable to care for themselves adequately.
  • What Is The Process To Get A Restraining Order?

    Individuals seeking restraining orders must first petition the Court for a temporary restraining order (TRO). After reviewing the information disclosed in the petition, the Court decides whether or not there is sufficient cause for a TRO to be granted. If so, the Court will schedule an injunction hearing, to take place within fourteen days of the TRO being granted. At the injunction hearing, the petitioner is given the opportunity to elaborate on the actions or events that warrant the restraining order. If sufficient evidence is provided, the restraining order can be extended for up to four years.

    Because getting a restraining order is reliant on information provided in the preliminary petition, it is strongly advised to seek counsel to prepare the petition and to provide representation at the injunction hearing. If a TRO petition is denied, an attorney is vital in presenting evidence for a successful appeal.

    Am I Able To Get A Restraining Order Against My Legal Spouse?

    In Wisconsin, restraining orders are granted as long as a person has sufficient evidence to demonstrate that someone is abusing, harassing, or threatening them. Parties’ marital status, even in regards to each other, doesn’t affect either person’s ability to take out a restraining order provided that they can prove that it is warranted.

    Can I Get A Restraining Order On My Child's Behalf?

    Anyone over the age of 18, regardless of parental relationship, can petition the Court for a restraining order on behalf of a minor. In cases of alleged child abuse, adult petitioners can submit evidence that a restraining order is necessary to safeguard the child’s best interests. Child abuse restraining orders can be granted for a maximum of two years, and do not expire if the child turns 18 while they are in effect.

    Post-Judgment Matters

    What Is Post-Judgment In Family Law?

    When financial situations or relationships change after an initial judgment, the matter often has to be revisited. Any matters opened with the Court in relation to a previous judgment intended to modify or reassess a decision that was made are done so as post-judgment matters. These cases are assigned new case numbers and are often heard by a different judge. Prior to hearings on the post-judgment matter, parties are allowed to submit evidence to their attorneys to support why the initial Court decision should or should not be modified. Each party’s attorney examines the evidence, and the case is heard by the Court similarly to how it was initially. The Court then makes reassesses its initial ruling based on what has been presented. If it is found that there is sufficient cause for the Court to modify its judgment, a new decision is entered, and the matter follows these new rules until such time that cause is presented to revisit it again.


    How Does Each Bankruptcy Chapter Differ?

    Contrary to popular belief, declaring bankruptcy doesn’t necessarily mean that debts are discarded completely. There are several different types of bankruptcies that one can file, with each having different guidelines for the consolidation or elimination of debt. Each chapter of bankruptcy has its pros and cons, making it vital to speak with an attorney to discuss the best option to protect your assets if you find yourself considering bankruptcy.

  • Chapter 7: Also called “straight bankruptcy” or “liquidation bankruptcy”. In Chapter 7 bankruptcy, the Court places a temporary stay on current debts to prevent creditors from collecting payments, garnishing wages, or repossessing property. The Court then takes legal possession of the debts, and appoints a bankruptcy trustee in the case, who is charged with administering the debtor’s assets, selling any property mandated by the bankruptcy, and distributing the proceeds of these sales to creditors. Then, at the end of this process, the Court will discharge any remaining debts. It is worth noting, however, that some types of debts, including child support, alimony, tax debts, and most student loans, usually aren’t dischargeable.
  • Chapter 11: Commonly referred to as “reorganization bankruptcy”, this chapter generally provides for the restructuring of a debtor’s business. After filing, the debtor typically remains in possession of their business, but operates it as a trustee. The debtor then proposes a reorganization plan to the court that enables the repayment of the business’s debts.
  • Chapter 12: Designed to allow family farmers or family fishermen with regular income to set forth a repayment plan on all or part of their debts. The repayment typically must occur over a period of 3 years unless the court should approve a repayment period of up to 5 years “for cause”. Chapter 12 was developed to be less complicated and less costly than Chapters 11 and 13 bankruptcy, because it considers that family farmers and fishermen likely have larger debts than other wage-earners.
  • Chapter 13: Also called a “wage-earner’s plan”; enables individuals with a regular income to propose a repayment plan that allows them to make installment payments to creditors over the span of 3 to 5 years. This provision has several benefits. During the period of the repayment plan, creditors are forbidden by law to start or continue collection processes. Additionally, Chapter 13 protects third-parties who are liable with the debtor, and thus may protect co-signers from creditors seeking collections on behalf of the primary borrower. Finally, Chapter 13 bankruptcy also enables debtors to stop foreclosure proceedings if they make all mortgage payments due during the 3-5 year repayment period on time.
  • Real Estate

    What Are The Differences Between Some Common Forms Of Property Ownership?

    There are a variety of ways that one can hold title to property:

    Sole Ownership: owned entirely by one person. Words in the deed such as “Bill, a single man” establish title as solely owned.

    Tenancy in Common: a form of co-ownership where property is owned by two or more persons at the same time. The proportionate interests and right to possess the property between the tenants in common need not be equal. Upon death, the decedent’s interest passes to their heirs named in the will, who then become new tenants in common with the surviving tenants in common. Words in the deed such as “Bill, John, and Mary, as tenants in common” establish tenancy in common.

    Joint Tenancy: a form of co-ownership where property is owned by two or more persons at the same time in equal shares. Each joint owner has an undivided right to possess the whole property and a proportionate right of equal ownership interest. When one joint tenant dies, their interest automatically passes on to the surviving joint tenant(s). Words in the deed such as “Bill and Mary, as joint tenants with right of survivorship” establish title in joint tenancy.  This form of ownership is not available in all states.

    Tenancy by the Entirety: a special form of joint tenancy when the joint tenants are husband and wife — with each owning one-half of the property.  Neither spouse can sell the property without the consent of the other. Words in the deed such as “Bill and Mary, husband and wife as tenants in the entirety” establish title in tenancy by the entirety. This form of ownership is not available in all states.

    Community Property: this special form of ownership between spouses is only available in states with community property laws in place. Upon death, the decedent’s ownership interest passes to another person similarly to as in tenancy in common. Words in the deed such as “Bill and Mary, husband and wife, as community property” establish community property ownership.

    Trusts: While not technically a form of ownership, real property may be owned in a Living Will. Upon passing, ownership interest passes to successor trustees and/or beneficiaries previously designated in the trust.

    What Is The Difference Between A Cooperative And A Condominium?

    In a condominium arrangement, you legally own a particular unit in a multiple-unit structure. You have a right to use common areas, such as hallways, elevators, gardens, swimming pools, and club house within that structure, in exchange for a monthly payment to an “association” for maintenance expenses of that common area. The association is typically run similarly to a corporation, with complaint and appeal processes to protect the individual rights of owners and to provide a mechanism for resolving disputes within the community.

    In a cooperative or “co-op” arrangement, you do not own your own specific unit in the building, but own stock in the corporation that owns the building and its apartments. You lease your apartment from the corporation according to a formula based on the unit’s size. As a shareholder, you participate in electing the board of directors who manage the cooperative.

    What Is The Purpose Of “Recording” A Deed?

    When you purchase real property, you receive a written document called a deed, which transfers the ownership of the property from the buyer to you as the purchaser. The deed gives you formal title, typically in exchange for a specified amount of money. The transfer of interest in real property is not complete until the deed is delivered to you. The deed should be recorded immediately in the county where the property is located. By recording the deed, you give notice to all future potential buyers of that property that you now have an ownership interest in that property. Recording also tracks the chronological chain of ownership. Before you purchase real property, a search is conducted at the county clerk’s recording office to confirm that the seller, as well as all previous sellers, has legal title to the property in question.

    What Tax Advantage Do I Get By Owning Real Property?

    Mortgage Interest Deduction: The major advantage to owning real property comes from the deductibility of the interest of a home mortgage or a home equity loan. In order to qualify for an income tax deduction, the home equity loan must be for your own home, or for a vacation home that is not rented to others. The mortgage interest deduction must be taken as an itemized deduction in Schedule A of your federal tax return.

    Property Tax Deduction: real estate taxes paid to any state or local government are also deductible on your federal tax return. To be deducted, the taxes must be based on the assessed value of the real property, and must be charged uniformly against all property under the jurisdiction of the taxing authority.

    Capital Gains Exemption: Upon the sale of your residence, you may exclude up to $250,000 for an individual owner or $500,000 for married couples from any realized capital gains. In order to qualify for a capital gains exemption, you must meet certain requirements. Amongst other things, you must have lived in the home for at least two of the five years prior to the sale, and must not have excluded gain from the sale of another home in the two years prior to the sale.

    What Is A Quitclaim Deed?

    A quitclaim deed transfers the property’s title from one person to another without any changes made. This allows for quicker property transactions, but because the title to the property is transferred “as-is”, legal protections for the purchaser are limited, and the seller remains responsible for any mortgages or liens associated with the property. Therefore, quitclaim deeds are typically only used to transfer ownership of property to trusted parties.

    Since My Spouse Passed Away, I Want To Re-Title My House So I Own It Jointly With My Adult Children. Is This A Good Idea?

    While sharing title to property may avoid probate after your death, naming “joint tenants” may have a number of adverse consequences. In effect, adding a joint tenant to your home deed means that you have now gifted a portion of that property to those named. When you make gifts worth more than $14,000 within a single calendar year to someone other than a spouse, the IRS requires you to file a gift tax return, and in some cases pay gift taxes. When gifting an interest in your home to anyone, you also are endangering your own financial security. If your new co-owners have creditors or are involved in a divorce, your own assets will be at risk. Furthermore, such a transfer may jeopardize certain property tax exemptions and other benefits you may qualify for as a senior, veteran, or homesteader.

    A better idea is to create a Living Trust and name your children as beneficiaries of the Trust upon your death. Doing so allows you to prevent the property from going through probate, yet gives you total control of your house prior to completely transferring ownership.

    What Is Closing?

    Closing is the final meeting of all parties involved in a real estate transaction. Attorneys for the buyer, seller, and bank convene with the seller and buyer themselves to sign and officially transfer title of the property to the buyer. A representative of the title insurance company will also be present to facilitate transfer of the title, and to record the new deed.

    Before closing day, the buyer should visit the property to assure that everything is in working order. After closing, any problems encountered with the property are the buyer’s responsibility. On the day of closing, the buyer should bring all necessary paperwork, and certified checks for the seller and for various closing costs. If documents required by law are not completed and present on closing day, closing may be delayed.

    Elder Law

    Medicaid Planning

    Is Medicaid Planning Legal?

    Medicaid planning is not only legal, but encouraged. Elder law attorneys work to protect clients’ assets by creating trusts, converting countable assets into exempt assets, facilitating asset transfers to increase the chances of qualifying for Medicaid.

    What Is Medicaid Planning, And What Does It Involve?

    While Medicaid is a federal program, its benefits are administered at the state level, meaning that its rules on eligibility often vary from state to state. Even within a single state, laws and regulations regarding Medicaid can change regularly. Medicaid Planning is a process designed to ensure the best chances of acceptance into the Medicaid program. Professionals such as Elder Law attorneys help to structure clients’ financial assets and prepare and file documentation to make acceptance into the program more likely. It can include things such as creating trusts, managing asset transfers, and protecting property from Medicaid recovery. Medicaid planning is also vital to ensure that, even if only one person in a couple is eligible for Medicare, the other person has adequate resources to continue living comfortably.

    Should I Wait Until I Need Medicaid Benefits Before I See an Elder Law Attorney?

    No, if you anticipate needing Medicaid at any point in the foreseeable future, it is prudent to seek the advice of a qualified elder law attorney far in advance of needing to qualify for coverage. There are courses of action you can take to make acceptance into Medicaid more likely that may not be available by the time you actually need coverage. An elder law attorney with expertise in Medicaid planning can evaluate your situation and advise you of the best steps to take in order to maximize your chances of qualifying for Medicaid.

    How Long Will It Take To Become Eligible For Medicaid?

    Unfortunately, there’s no simple answer as to how long it might take to qualify for Medicaid. Many variables, including your location, income and expenses, and the completeness of your application can ultimately affect your eligibility timeline. Consulting with an elder law attorney before applying for Medicaid can greatly decrease your wait time for Medicaid acceptance, and will also make sure that any other questions you may have are answered.

    Doesn’t Medicare Provide Coverage for Long-Term Care?

    Medicare does not provide coverage for long-term care, such as care in assisted living facilities and nursing homes. It will only pay for up to 100 days of skilled nursing care per illness. In order to be covered by Medicare, the patient must be hospitalized for the illness, and must be receiving a high level of care that couldn’t be provided at home or on an outpatient basis. Additionally, after 20 days of assisted living or nursing home care, there is a large copayment required of the patient for the remainder of the stay.

    Can My Children Take Money Out of Our Joint Account Without Affecting My Eligibility?

    If your child removes money from your jointly-held account, it could be considered an asset transfer. Currently, Medicaid has a look-back period on transfers of assets of 60 months. This means that any gifts or other transfers of assets made in the 60 months before you applied for Medicaid will be assessed in order to determine your eligibility. If you transfer assets during this period, even if it is before applying for Medicaid, you could be subjected to a penalty. Therefore, if you are considering seeking Medicaid coverage, but have made any transfer of assets within the past five years, you should not apply for Medicaid without first consulting an elder law attorney to determine how it might affect your eligibility.

    What Is Long-Term Care Insurance, And Is It Really Necessary?

    Long-term care insurance covers the risk that you may at some point be placed into a nursing home by paying for some or all of the expenses associated with nursing home care. It also frequently covers assisted living or at home care. The cost of care facilities can vary greatly depending on factors such as the the location and quality of the facility. Long-term care insurance can thus be a very valuable tool to avoid depleting your estate due to the cost of care.

    Estate Planning

    What Is Estate Planning?

    When someone passes away, their property must somehow pass to another person. In the United States, any competent adult has the right to choose the manner in which their assets are distributed after their passing. (The main exception to this general rule involves what is called a “spousal right of election”, which disallows the complete disinheritance of a spouse in most states.) A proper estate plan also involves strategies to minimize potential estate taxes and settlement costs, as well as to coordinate what would happen with your home, investments, business, life insurance, employee benefits (such as a 401K plan), and other property in the event of death or disability. A good estate plan should also include directions to carry out your wishes regarding healthcare matters, so that if you ever are unable to give the directions yourself, someone you trust can do that for you.

    What Does My Estate Include?

    Your estate is everything that you own anywhere in the world, including:

    • Your home or any other real estate that you own
    • Your business
    • Your share of any joint accounts
    • The full value of your retirement accounts
    • Any life insurance policies that you own
    • Any property owned by a trust over which you have significant control

    Why Establish An Estate Plan?

    Many people don’t engage in formal estate planning because they don’t think that they have many assets, or they mistakenly believe that their assets will automatically be divided amongst their children. However, if you don’t make proper legal arrangements for the management of your assets and affairs after your passing, state intestacy laws will take over upon your death or incapacity. This often results in the wrong people getting your assets, as well as increased estate taxes.

    If you pass away without establishing an estate plan, your estate undergoes probate, a public, court-supervised proceeding. Probate can be expensive, and can tie up the assets of the deceased for a prolonged period before beneficiaries can receive them. Your failure to outline your intentions through proper estate planning can tear your family apart, as each person maneuvers to be appointed authority to manage your affairs. Furthermore, it is not unusual for bitter family feuds to ensue over modest sums of money or a family heirloom.

    What Estate Planning Documents Should I Have?

    A comprehensive estate plan should include the following documents, prepared by an attorney following in-depth counseling and taking into account your particular family and financial situation:

    A Living Trust can be used to hold legal title to and provide a mechanism for the management of your property. You (and your spouse) are the Trustee(s) and beneficiaries of your trust during your lifetime. You also designate successor Trustees to carry out your instructions in case of death or incapacity. Unlike a will, a trust usually becomes effective immediately after incapacity or death. Your Living Trust is “revocable”, which allows you to make changes to it or terminate it at any time. One of the benefits of a properly funded Living Trust is that it will avoid or minimize the expenses, delays, and publicity associated with probate.

    If you have a Living Trust-based estate plan, you also need a Pour-Over Will. A Pour-Over Will allows the executor of an estate to transfer any assets owned by the decedent into the decedent’s trust so that they are distributed according to its terms.

    A Will, also referred to as a Last Will and Testament, is primarily designed to transfer your assets according to your wishes. A Will also typically names someone to be your Executor, or the person you designate to carry out your instructions upon your death or incapacity. If you have minor children, you should also name a Guardian, as well as alternate Guardians, in case your first choice is unable or unwilling to serve. A Will only becomes effective upon your death and after it is admitted by a probate court.

    A durable power of attorney for property allows you to carry out your financial affairs in the event that you become disabled. Unless you have a properly drafted power of attorney, it may be necessary to apply to a court to have a guardian or conservator appointed to make decisions for you upon your incapacitation. This guardianship process is often time-consuming, expensive, and emotionally draining

    There are generally two types of durable powers of attorney. The first is a present durable power of attorney, in which decision-making power is immediately transferred to your agent (also known as your attorney-in-fact). The second, known as a springing or future durable power of attorney, only comes into effect subsequent to your disability as determined by your doctor. Anyone can be designated as your power of attorney, although most people choose a spouse or domestic partner, trusted family member, or friend. Appointing a power of attorney assures that your wishes are carried out exactly as you want them, and allows you to decide who will make decisions for you.

    The law also allows you to appoint someone you trust to decide about medical treatment options if you lose the ability to decide for yourself. You can do this using a durable power of attorney for health care, also known as a health care proxy, meaning you designate someone to make such decisions on your behalf. You can allow your health care agent make decisions about all health care matters, or only about certain treatments. You may also give your agent instructions that they have to follow. Hospitals, doctors, and other health care providers must abide by your agent’s decisions as if they were your own.

    A Living Will informs others of your preferred medical treatment should you become permanently unconscious, terminally ill, or otherwise unable to make or communicate decisions regarding treatment. In conjunction with other estate planning tools, it can bring peace of mind and security, while avoiding unnecessary expense and delay in the event of future incapacity.

    Some medical providers have refused to release information, even to spouses and adult children authorized as durable medical powers of attorney, on the grounds that the 1996 Health Insurance Portability and Accountability Act (HIPAA) prohibits such releases. In addition to the above documents, you should also sign a HIPAA authorization form that allows the release of medical information to your agents, successor trustees, family, or anyone else you wish to designate.

    How Do I Name A Guardian For My Children?

    If you have children under the age of eighteen, you should designate someone to be appointed guardian over their person and property, and can name more than one person if desired. Of course, if a surviving parent lives with the minor children, and has custody over them, that person automatically remains the sole guardian. This is true even if others may be designated guardian of your estate. You should also name at least one alternate guardian for your minor children, in case the primary guardian cannot serve or is not appointed by the court.

    What Is A Revocable Living Trust?

    A properly drafted Revocable Living Trust (RLT) is a powerful estate planning tool that allows you to remain in control of your assets during your lifetime, have them managed upon incapacity, and efficiently and privately transfer them to your loved ones at death according to your wishes.

    Sometimes referred to simply as a Living Trust, an RLT holds legal title to your assets, and provides a mechanism to manage them. You would serve as the trustee and beneficiary of your trust during your lifetime, and would also designate successor trustee(s) to carry out your instructions for how you want your assets managed and distributed in case of death or incapacity.

    In order for the Living Trust to function properly, you need to transfer many of your assets to your Living Trust during your lifetime. The fact that it is “revocable” means that you can make changes to it or terminate it at any time.

    Will I Lose Any Control Over My Property If I Create A Revocable Living Trust?

    Creating a Revocable Living Trust and transferring your assets to the name of that trust will generally not affect your ability to control such assets. During your lifetime, provided that you are mentally competent, you have complete control over all of your assets. As the trustee of your trust, you may engage in any transactions that you could before you had a Living Trust, without changes in the way your income taxes are filed. Because a Living Trust is revocable, it can be modified at any time, can be completely cancelled if you so desire. Upon your incapacity, the individuals you have designated will be able to act on your behalf according to the instructions you have laid out in your Living Trust. Upon your passing, the Living Trust can no longer be modified, and the successor trustee(s) you have designated will proceed to implement your wishes as directed.

    Do I Have To Transfer All Of My Assets To My Living Trust?

    Assets with beneficiary designations, such as a life insurance policy or annuity payable directly to a named beneficiary need not be transferred to your Living Trust. Furthermore, money from IRAs, Keoghs, 401(k) accounts and most other retirement accounts transfer automatically, outside probate, to the persons named as beneficiaries. Bank accounts that are set up as payable-on-death (POD) accounts or “in trust for” accounts (Totten Trusts) with named beneficiaries also pass to that beneficiary without having to be titled into your trust. It is important, however, to seek the counsel of an experienced estate planning attorney throughout this process, as they can advise on and assist with transferring necessary assets to your trust.

    If I Transfer Title to Real Property To My Living Trust, Can The Bank Accelerate My Mortgage?

    Federal law prohibits financial institutions from accelerating your loan when you transfer property to your living trust, provided you continue to live in that home. The only exception to this federal law, enacted as part of the 1982 Garn-St. Germain Act, is that it does not provide for such protection for residential real estate with more than five dwelling units.

    Planning For Incapacity

    What Is A Durable Power Of Attorney?

    A durable power of attorney is a document that empowers another individual to carry on your financial affairs if you should become disabled or incapacitated. Without a durable power of attorney in place, it may be necessary for one of your loved ones, to petition a court to be appointed guardian or conservator in order to make decisions for you. This guardianship process can be time-consuming and expensive.

    There are generally two types of durable powers of attorney. The first is a present durable power of attorney, in which decision-making power is immediately transferred to your attorney-in-fact, or the person authorized to make decisions for you. Here, the term “attorney” does not mean someone who is licensed to practice law. The other, a springing or future durable power of attorney, only comes into effect subsequent to your disability as determined by a doctor.

    Who Can Establish A Power Of Attorney?

    Generally, any individual over the age of majority (18 years old in the state of Wisconsin) and who has not legally been declared incompetent can establish a power of attorney.

    Who May Act As An Agent Under A Power of Attorney?

    In general, an agent, or attorney-in-fact, may be anyone who is legally competent and over the age of majority. Most people choose a close family member such as a spouse, sibling or adult child, but any trusted person can be appointed power of attorney. You may also appoint multiple agents to serve either simultaneously or separately. Appointing more than one agent to serve as power of attorney simultaneously can lead to problems, however, because all powers of attorney need to be present to sign all documents pertaining to action on behalf of a person who is rendered disabled or incapacitated. If any one of the agents is unavailable to sign, action may be delayed. Therefore, it is usually more prudent to appoint one person as primary agent, and to name anyone else to serve as alternate agent should your first choice be unwilling or unable to serve.

    What Is A Durable Power Of Attorney For Health Care?

    The law allows you to appoint someone to make decisions about your medical care if you should lose the ability to decide for yourself. This is done by appointing a durable power of attorney for health care, also known as a health care proxy or agent. You can allow this person to make decisions about all health care matters, or only about certain treatments. You may also give your agent instructions that they have to follow. They can then make sure that health care professionals follow your wishes, and can decide how your wishes apply if your medical condition changes. Hospitals, doctors and other health care providers must follow your agent’s decisions as if they were your own.

    What Is A Living Will?

    A Living Will informs others of your preferred medical treatment should you become permanently unconscious, terminally ill, or otherwise unable to make or communicate decisions regarding treatment. In conjunction with other estate planning tools, it can bring peace of mind and security, while avoiding unnecessary expenses and delays decision-making in the event of future incapacity.

    What Is A HIPAA Authorization?

    Some medical providers have refused to release information, even to those authorized as powers of attorney for healthcare, on the grounds that HIPAA, the 1996 Health Insurance Portability and Accountability Act, prohibits such releases. Therefore, as part of your incapacity planning, you should sign a HIPAA Authorization Form, which allows the release of your medical information to your agents, successor trustees, family, or any other individuals you wish to designate.


    What is Probate, And Why Does Everyone Want to Avoid It?

    When a loved one passes away, their estate often goes through a court-managed process called probate or estate administration, where the assets of the deceased are managed and distributed. If your loved one owned their assets through a properly drafted and funded Living Trust, it is likely that no court-managed administration is necessary, although the successor trustee needs to administer the distribution of the deceased. The length of time needed to complete probate of an estate depends on the size and complexity of the estate, as well as the rules and schedule of the local probate court.

    Every probate estate is unique, but most involve the following steps:

    • Filing of a petition with the proper probate court
    • Notice to heirs under the will or to statutory heirs (if no will exists)
    • Petition to appoint Executor (in the case of a will) or Administrator for the estate
    • Inventory and appraisal of estate assets by Executor/Administrator
    • Payment of estate debt to rightful creditors
    • Sale of estate assets
    • Payment of estate taxes, if applicable
    • Final distribution of assets to heirs

    Estate Taxes

    Will My Estate Be Subject To Death Taxes?

    There are two types of death taxes that you should be concerned about: federal estate tax and state estate tax. Federal estate tax is computed as a percentage of your net estate. Your net taxable estate is comprised of all assets you own or control, minus certain deductions. Such deductions include administrative expenses, such as funeral and burial costs, as well as charitable donations. Federal estate tax currently taxes estates with net assets of $5,250,000 or greater.

    Even if you aren’t affected by federal estate tax, you still need to determine whether you are subject to state estate and inheritance taxes. Furthermore, your estate may be taxable in the future if it appreciates in value. You should regularly review your estate plan with an estate planning attorney to ensure that it takes into account changes in tax laws, as well as shifts in your individual circumstances.

    What Is My Taxable Estate?

    Your taxable estate consists of the total value of your assets, including your home, other real estate, business interests, retirement accounts, life insurance policies, and your share in any joint accounts, minus liabilities and deductions such as funeral expenses paid out of the estate, debts owed at the time of death, bequests to charities, and the value of any assets passed on to your U.S. citizen spouse. The taxes imposed on the estate are then paid out of the estate itself before distribution to your beneficiaries.

    What Is The Unlimited Marital Deduction?

    The federal government allows every married individual to give an unlimited amount of assets either, by gift or bequest, to their spouse without the imposition of any federal gift or estate taxes. In effect, the unlimited marital deduction allows married couples to delay the payment of estate taxes upon the passing of the first spouse, because upon the death of the surviving spouse, all assets in the estate over the applicable exclusion amount ($5,120,000) will be included in the taxable estate. It is important to keep in mind, however, that the unlimited marital deduction is only available to surviving spouses who are United States citizens.

    What Is A Credit Shelter Trust Or A-B Trust And How Does It Work?

    A credit shelter trust, also known as a bypass trust or A-B trust, is used to eliminate or reduce federal estate taxes, and is typically used by married couples whose estate exceeds the amount exempt from federal estate tax.

    Because of the unlimited marital deduction, a married person may leave an unlimited amount of assets to their spouse, free of federal estate taxes and without using up any of their estate tax exemption. For individuals with substantial assets, the unlimited marital deduction only delays the assessment of estate taxes. When the second spouse dies, leaving an estate worth more than the exemption amount, their estate may be subject to estate tax on the amount exceeding the exemption. Meanwhile, the first spouse’s estate tax credit was left unused. This could be avoided by ensuring that after the passing of the first spouse, an estate tax return is filed even if no taxes are due. The purpose of a credit shelter trust is to ensure preservation of both spouses’ exemptions. Upon the death of the first spouse, the credit shelter trust establishes a separate, irrevocable trust to contain the deceased spouse’s share of the estate’s assets. The surviving spouse is the beneficiary of this trust, with any children as beneficiaries of the remaining interest. This irrevocable trust is funded to the extent of the first spouse’s exemption. Thus, the amount in the irrevocable trust is not subject to estate taxes upon the death of the first spouse, and the trust takes full advantage of the first spouse’s estate tax credit. Special language in the trust provides limited control of the trust assets to the surviving spouse, which prevents the assets from becoming subject to federal estate tax, even if the value of the trust exceeds the exemption amount by the time the surviving spouse dies.

    What Is A Qualified Personal Residence Trust (QPRT) And How Does It Work?

    Our homes are often our most valuable assets, and are hence one of the largest components of a taxable estate. A Qualified Personal Residence Trust (QPRT, pronounced “cue-pert”) allows you to give away your house or vacation home at a discount, freeze its value for estate tax purposes, and continue to live in it. To do this, the title to the property is transferred to the QPRT (usually with family members as beneficiaries), with you as the trustor reserving the right to live in the house for a specified number of years. If you live to the end of the previously-specified period, the property, as well as any appreciation in its value since the transfer, passes to the beneficiaries free of any additional estate or gift taxes. After the end of the specified period, the you may continue to live on the property, but must pay rent to the designated beneficiary in order to avoid inclusion of the residence in your estate. This serves to reduce the value of the taxable estate. It is important to note, though, that the rent paid to the designated beneficiaries will be included in the assessment of their income tax.

    If the trustor dies before the end of the previously-specified period, the full value of the house will be included in the estate for estate tax purposes, though in most cases you are no worse off than you would have been had you not established a QPRT. A QPRT also serves as an excellent asset/creditor protection vehicle, since you no longer technically own the property once the trust is established.

    What Is An Irrevocable Life Insurance Trust And How Does It Work?

    It is a common misconception that life insurance proceeds are not subject to estate tax. However, while the proceeds are received by your loved ones without any income tax assessed, life insurance proceeds are countable as part of the taxable estate, and therefore your loved ones can lose over 40% of the value of your estate to federal estate taxes. An irrevocable life insurance trust (ILIT) is a trust created during your lifetime that controls your life insurance policy, and can also manage and distribute the proceeds that are paid out upon your death in accordance to your wishes. Additionally, an ILIT protects the benefits from your life insurance policy from assessed estate taxes. It is worth noting, however, that because it is irrevocable, an ILIT typically cannot be altered or cancelled after it is created.

    An ILIT offers many options. For example, your ILIT could be structured to provide income to your surviving spouse upon your death, with any funds remaining going to your children from a previous marriage. Alternatively, you could arrange for the timed distribution of your life insurance proceeds over a previously-specified period of time for the support of a financially irresponsible child. ILITs offer flexibility, so that you can ensure that your loved ones are provided for after your death.

    What Is A Family Limited Partnership And How Does It Work?

    A Family Limited Partnership (FLP) is a form of limited partnership amongst members of a family. A limited partnership is one which has both general partners, who control management of the estate, and limited partners, who are passive investors. General partners bear unlimited personal liability for partnership obligations. For example, if the partnership should declare bankruptcy or be sued, the general partners’ personal assets may be used to pay creditors. Because of the degree of personal liability involved, general partners typically receive higher compensation for their role in the partnership.