Do I need a will?
Yes, through a will you can direct who you would like to receive your probate property, make specific bequests, designate who you want to administer your estate, nominate the individuals you want appointed as the guardian of your minor children, decrease the time and expense of probate, as well as create a trust for minors, aged, and/or disabled beneficiaries that may postpone distribution, postpone division of estate, and give a trustee more discretionary authority.
What will happen if I don’t have a will?
If you do not have a will, the court will have to designate a person to administer your estate and to be guardian of your minor children. See Wisconsin Statutes § 54.15(6). This is not only time consuming and costly, the court may choose someone who you may not have chosen. The state, via its intestacy statute, will choose who will inherit your estate and when and how they inherit it. Pursuant to Wisconsin Statutes § 852.01, without a will, your estate would pass as follows:
- To a surviving spouse or domestic partner (Note: if children were born from someone besides the surviving spouse, the surviving spouse receives half the estate and such children would receive the other half);
- To children, grandchildren, great-grandchildren, etc;
- To parents;
- To siblings or the children of pre-deceased siblings;
- To grandparents or the children, grandchildren, great-grandchildren, etc. of grandparents; then
- To the state.
The intestacy statute is based on who the state thinks you would have wanted to inherit your estate if you had a will. Again, this may not be the individuals you wanted to inherit your estate, and even if it was, you may have wanted to put some restrictions on and/or have some control over when and how they inherit it.
What doesn’t a will do?
Many people think that if you have a will, you avoid probate. That is not true. A will directs how and to whom your executor or personal representative should distribute your probate property. However, if you have prepared a beneficiary designation form for one of the types of assets listed below, that asset will not go through probate and therefore, the distribution of that asset will not be controlled by your will. The distribution of that asset will be controlled by the beneficiary designation form that you filled out. Nonprobate property may include: (1) Life insurance; (2) Retirement plans; and/or (3) Survivorship marital property and joint property.
What is probate?
Probate is the process through which the court authorizes the transfer of ownership of assets held solely in the decedent’s name. Probate assets may include a home, land, and/or bank accounts. However, you can make probate assets non-probate assets through planning techniques. For example, you can use a payable on death designation to transfer your bank account to your intended beneficiaries. You can use a transfer on death designation to transfer for real estate to your intended beneficiaries without probate. This type of probate avoidance strategy will usually involve seeing an attorney to draft the transfer on death designation.
What happens to assets held in joint ownership?
Generally, any assets held and titled as joint ownership property pass to the survivor of the joint owners outside of probate. Common assets that can be held jointly include bank accounts and real estate. However, keep in mind that the asset will pass fully to the survivor, even if you wish it to go to someone else.