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Questions Answered by Thomas B. Burton

1 Answer | Asked in Estate Planning and Probate for Wisconsin on

Q: what are the risks to using probate rather than a trust in florida?

My great aunt just passed (she lived and drafted her documents in Florida). her attorney is advising using probate rather than the trust. why do this? what's the point of doing a trust then?

Thomas B. Burton answered on Jun 12, 2019

If your Aunt has a properly set up Trust, then the best way to avoid probate is often to have the assets pass through the Trust. I do not know the specifics of this situation, but it is possible that your Aunt set up the Trust but did not properly fund the trust (meaning she didn't transfer her... Read more »

2 Answers | Asked in Real Estate Law for Wisconsin on

Q: Home listing -The owner is deceased and the agent says the “kids told him they have right to sell” How do we verify.

Thomas B. Burton answered on Jun 12, 2019

I agree with Attorney Greller, whoever is named as the Personal Representative of the Estate (if the owner died with a Will) or the Trustee of the Trust (if the home was held in a Trust) will have the authority to enter into contracts to sell the home. Ask the children for the Letters Testamentary... Read more »

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1 Answer | Asked in Elder Law for Wisconsin on

Q: In the State of Wisconsin, can a person, who has an activated HCPOA, execute a new HCPOA with a different designee?

Thomas B. Burton answered on Jun 3, 2019

As long as the principal (the person who created the Health Care Power of Attorney "HCPOA") is mentally competent, and is not currently incapacitated as is defined in the document, they are free to execute a new HCPOA, and name a new Agent to act for them in the event of their incapacity, at any... Read more »

1 Answer | Asked in Estate Planning for Wisconsin on

Q: We have a cabin & have 2 sons. We want to give one son 1/2 of what the cabin is worth. Say it's worth $150,000.

We would give the one son $75,000. Say when we die the one that has the cabin wants to sell. He would be pocketing $150,000. We realized the other son only got $75,000. This is not right though. So would we write up that the one son that got the cash would get another $37,500? Which would then be... Read more »

Thomas B. Burton answered on May 28, 2019

It depends on what you are trying to accomplish. If I understand correctly you want to gift $75,000 in cash to one son today. Instead of cash, you plan to leave the other son your cabin at death. You could order an appraisal of the cabin now and figure out what it is worth. If it is worth exactly... Read more »

1 Answer | Asked in Estate Planning for Wisconsin on

Q: My father passed away and I am the sole heir, his girlfriend lives in his house for 5 years and does not pay rent.

Can I change the locks on his garages while we try to get her out of the house?

Thomas B. Burton answered on May 21, 2019

You should see if your father executed a Will before he died. If he had a Will, this document will state what was to happen to his assets and should name a Personal Representative in charge of the Estate. Your Father's house is now owned by his Estate, and unless his Will stated that his girlfriend... Read more »

1 Answer | Asked in Probate for Wisconsin on

Q: My daughters father died in a accident 3/22. He had no will, lived in Mn & Fl and owns $500k...how do I start probate?

His name is Troy T Gambucci age 46. Died in Az, lived in Mn and Fl. He has 2 properties in Florida in only his name no liens. His mom, Pam Karahalios(Dickerson) age 69 lives in the house in Shakopee, Mn with him. He just closed on a house he owned March 6 and profit of $90k went into his business... Read more »

Thomas B. Burton answered on May 16, 2019

Hello, I am sorry to hear about the passing of your daughter's father. The previous advice you received is correct, if your daughter's father passed away without holding the real estate in Florida and Minnesota in a Trust, then a probate action will likely need to be opened in both states for the... Read more »

1 Answer | Asked in Elder Law for Wisconsin on

Q: how To avoid loosing a house to the nursing home so my moms significant other won’t become homeless in wi

Moms health starting to decline may need more assistant with care

Thomas B. Burton answered on Apr 30, 2019

If your Mom is married to the person in question, the community spouse can remain in the home, while the other spouse (called the institutionalized spouse) applies for Medicaid. This would allow the community spouse to continue living in the house until their death, after which the State of... Read more »

1 Answer | Asked in Probate for Wisconsin on

Q: How will you know when you are no longer in Probate ?

Thomas B. Burton answered on Apr 22, 2019

Your lawyer should tell you when the probate process has been concluded and the Court has closed the Estate. If you do not have a lawyer, you can check the status of the case online on the Wisconsin Court system website. You just need to know the case number, or the name of the deceased, and the... Read more »

1 Answer | Asked in Real Estate Law and Probate for Wisconsin on

Q: My brother and I inherited land when our mother passed away my aunt's own a portion of said land

I asked my aunts to buy us out or were selling our portion there making things difficult although we inherited it legally , 1 aunt is saying it's private property and that we can't sell our portion .

Thomas B. Burton answered on Apr 22, 2019

You will need to look at the deed to determine how you took title to the land to figure out what to do next. I recommend you pay a real estate lawyer to examine it for you and then lay out your best options in this situation. If you and your brother own an interest in the property, and you hold... Read more »

1 Answer | Asked in Estate Planning and Elder Law for Wisconsin on

Q: As a beneficiary of my recently deceased parents, how can I obtain a copy of their initial Will, which was drawn up by

an attorney many years ago? Last August, 2018, it was then revised, of which I did receive a copy (of that revised one).

Thomas B. Burton answered on Apr 17, 2019

The old Will was likely revoked when they executed the new Will. You can only have one Will at a time, so when you execute a new Will you usually include specific language revoking the old Will. The other way to revoke a Will is by physically destroying it. It is possible your parents shredded or... Read more »

1 Answer | Asked in Probate for Wisconsin on

Q: I received a domiciliary letter as personal rep for my brother's estate. What else is needed to list and sell the house?

Thomas B. Burton answered on Apr 1, 2019

If you have received Domiciliary Letters from the Court and have been appointed as Personal Representative for your brother's Estate, then you now have authority under state law to act on behalf of the Estate. This means you can now go about listing the home for sale, and or hiring a realtor as... Read more »

1 Answer | Asked in Estate Planning and Probate for Wisconsin on

Q: How do I file to become a Personal Representative for my deceased Uncle’s assests. He lived in West Allis, WI

He died in February and left no Will. He owned a home and has a checking and money market account, that we have no access to.

Thomas B. Burton answered on Apr 1, 2019

Hello, I am sorry to hear about your Uncle's passing. If you want to become appointed as Personal Representative of his Estate, you will need to file an Application for Informal Administration, or an Application for Formal Administration to Open the Probate, as well as a Consent to Serve Form,... Read more »

2 Answers | Asked in Tax Law and Probate for Wisconsin on

Q: Who is responsible for real estate property taxes on a Home being held in a testamentary trust for minor children?

Thomas B. Burton answered on Mar 27, 2019

You should check the terms of the trust, but usually the trust itself will pay the taxes while the home is being held in trust for the minor children. This could be altered by the terms of the trust, to say someone else must pay, but since the children are minors, it seems likely that the trust was... Read more »

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1 Answer | Asked in Elder Law for Wisconsin on

Q: I am POA for my mother. Can I prevent my sister from visiting my mom

My sister is irrational and wants to take care of my mom herself and now she went to the memory care and call the cops and they let her in and told me she can visit regardless and even take her out of there even though my mom is incapacitated

Thomas B. Burton answered on Feb 27, 2019

The answer to this question may depend on whether you are the Agent for your Mom under a Financial Power of Attorney or the the Agent under a Health Care Power of Attorney document. The Health Care Power of Attorney document is designed to designate an agent to take care of someone's physical and... Read more »

1 Answer | Asked in Elder Law for Wisconsin on

Q: How much should it cost to process a quit claims deed. I am transfering home ownership from children to parent.

Transfering title back from children to parent, In prparation for possible sale by parent.

Quit Claims deed form children have been signed and notorized.

Thomas B. Burton answered on Feb 18, 2019

Hello, the recording fee for recording a Quit Claim Deed is $30 payable to the Register of Deeds in the County where the property is located. If this is a sale from the children to the parent, then a transfer tax by the State of Wisconsin will be assessed on the value of the real estate... Read more »

1 Answer | Asked in Real Estate Law and Landlord - Tenant for Wisconsin on

Q: My lease has 2 different terms which is correct?

The front page of the lease says "for the year of Jan. 1st 2018 to December 31st 2018" in the provisions on the 2nd or 3rd page it says "both the tenant and landlord acknowledge this lease is for a minimum of one year" the lease was signed in September 2018, does that mean our lease expires in... Read more »

Thomas B. Burton answered on Feb 11, 2019

I have not seen your lease, but it sounds to me like someone forgot to change the dates on the front of the lease. It seems they intended the lease to run for at least one year from the date you signed it, but if that was their intent the dates are unclear. If it had said "This lease is for one... Read more »

1 Answer | Asked in Estate Planning and Probate for Wisconsin on

Q: My father is buried in a dbl plot. My mother just passed and was cremated. We have the will with her wishes

Can daughter bury urn herself into the ground?

Thomas B. Burton answered on Feb 5, 2019

I would check with the person in charge of the Cemetery to see if they have any rules about who is allowed to bury the ashes. Generally, I have had other clients say they were allowed to bury an urn in a burial plot they own. It sounds like your father has a double plot so he should be able to do... Read more »

1 Answer | Asked in Probate for Wisconsin on

Q: My mother passed away without a will in Dane Cty, Wisconsin. My sister & I were her only children living in other states

Total value of her personal property approx $500 & a joint checking acct with sister & self ($1500). At time of death she was in skilled nursing facility & enrolled Care Wisconsin (paid monthly amount from only income of SS) & Medicaid. Her personal property could not be used by us. Are we... Read more »

Thomas B. Burton answered on Feb 2, 2019

If you and your sister are your Mom's only children, and she died while unmarried, then you will be her only heirs under the laws of intestate succession. If you need to transfer the Bank Account to you and your sister, there is a simplified process for estates under $50,000 where you can use a... Read more »

1 Answer | Asked in Probate for Wisconsin on

Q: I sold home for mother's home as guardian to pay for care, that I was to inherit 50% , do I get a share of other assets

mom inherited $167.000 after being placed in memory care facility. sister was left all assets and 50% of home, do I get nothing?

Thomas B. Burton answered on Jan 24, 2019

It is unclear to me from your question whether you and your sister are the only children of your mother. If it is just you and your sister, and your mother was unmarried when she died, then it is likely you and your sister are her only two heirs under the laws of intestacy. If your Mother executed... Read more »

1 Answer | Asked in Real Estate Law for Wisconsin on

Q: What can be included in a house purchase offer to be sure the property will be acquired but delays the closing?

Our daughter found a perfect house and wants to be sure it does not slip away but would prefer to delay closing for several months. Can a contingency be put into the contract along with a statement that she requests the opportunity to remove the contingency if another offer without a contingency... Read more »

Thomas B. Burton answered on Dec 28, 2018

Yes, she could include an escalation clause if another offer comes in with a closing date that is sooner, meaning her offer would increase in purchase price, or her Offer to Purchase could offer to move her closing date up if another offer comes in with an earlier closing date before your... Read more »

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