Common Questions about Wills

Milwaukee Estate Planning Law Firm

• What is a Will?One of the primary goals of the estate planning process is to select the manner and mechanism of the management and distribution of your assets after you are gone. The Will (also referred to as a “Last Will and Testament,” or “Testamentary Will”) is one of the most commonly used vehicles for achieving this purpose.

  Executing a properly drafted Will allows you to specify to whom, and in what amounts, your assets will be distributed upon your death. You can bequeath specific items or dollar amounts, or percentages of the total assets you own at the time of your death. You can give your assets to one or more family members, charities, other institutions, or combinations thereof.

  In addition, your Will allows you to appoint the person you would like to be in charge of administering your estate. In Wisconsin, this person is known as the “personal representative” (in many states, this person is referred to as the “executor”). The person you nominate to serve as your personal representative will be responsible for locating and collecting all of the estate’s assets, liquidating the assets to the extent necessary or desirable, paying your final expenses and debts, filing tax returns, and distributing your assets as you specified in your Will. Your personal representative can be a family member, attorney, or other trusted individual.

• What happens to my assets if I do not have a Will?If you do not have a Will and do not engage in any other type of estate planning, your assets will pass according to Wisconsin’s laws of intestate succession (found in Chapter 852 of the Wisconsin Statutes), and, with few exceptions, will require a probate proceeding. The laws of intestate succession dictate who, and in what order and amount, will receive your assets following your death. Therefore, by failing to put an estate plan in place, you forgo the ability to decide who shall benefit from, and serve as the personal representative of, your estate. Further, in probate proceedings without a Will, the personal representative is required to post a bond to serve in that capacity, which increases the costs of the probate.
• If I execute a Will, must my estate pass through probate?Yes, by executing a Will and not engaging in any additional estate planning (see section 4 below), you are ensuring that your estate will be administered through a probate proceeding. While many details of the probate procedure are beyond the scope of this brochure, probate is a court-supervised process that requires the appointment of a personal representative to take charge of the administration of your estate.

  While frequently not as costly as often believed to be, probate does require an investment of time, effort and expense. Further, probate requires that certain statutory time periods be observed, which means that the administration of even the most straight-forward estate takes at least six months. You may want to speak with a qualified estate planning attorney about planning techniques which can eliminate the need for your estate to pass through probate.

• If I execute a Will, must all of my assets pass through probate?No. Some types of assets, such as IRAs, 401ks and life insurance proceeds can, and usually should (primarily for estate and/or income tax reasons) pass to their intended recipients by operation of beneficiary designations. For these types of assets, you must work with your estate planning attorney and other relevant professionals (such as your retirement plan administrator, insurance agent or financial advisor) to make sure that you properly complete the necessary forms for the assets to pass directly to your heirs.
• Are there any rules governing the form and execution of Wills?Yes. In Wisconsin, the rules governing the form and execution of Wills are found in Chapter 853 of the Wisconsin Statutes. Wills that do not meet these requirements are not valid under Wisconsin law. If your Will does not comport with the statutory rules, the probate court may have no choice but to administer your estate according to the laws of intestate succession. Therefore, it is important to have your Will drafted by an attorney familiar with these requirements so as to not run the risk of frustrating your estate plan as a result of a technical or formal error or insufficiency.
• Is a “Living Will” the same thing as a Testamentary Will?No. A Living Will is a type of advanced directive used by some to set out in writing their wishes concerning medical care and life support in the event they are terminally ill or incapacitated. A Living Will has nothing to do with the distribution of assets or the management of a probate administration.
• I already have a financial power of attorney ~ can my agent handle the administration of my estate?No. Your financial agent’s authority to act on your behalf ends at the moment you pass away. Indeed, your agent risks personal liability by managing or distributing your assets following your death. Therefore, having a financial power of attorney does not eliminate the need for you to engage in additional estate planning (such as executing a Will). However, through your Will, you can nominate the person you appointed as your financial agent to also serve as your personal representative.
• Limitations and DisclaimerThis brochure is intended to provide an overview of some of the issues and considerations concerning Wills and the estate planning process. It is not intended as a complete explanation or summary of the laws and other considerations affecting or implicated thereby. Although efforts have been taken to ensure the accuracy and currency of the information contain herein, the laws governing Wills, estate planning, and probate are subject to modification by the legislature, and each individual’s situation is unique. You should consult with an appropriate legal advisor prior to taking any action concerning the topics and concepts addressed herein.