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A will, also called a last will and testament, is a legal document that expresses a person’s wishes about how their property, assets, and other affairs should be handled after their death. Wills are a key piece of estate planning. They allow the person (referred to as the testator) to specify who inherits their property and assets and to name a guardian to care for any minor children.
A last will and testament is a legal document that outlines how a person’s assets should be distributed after their death. It also names someone to manage the property until it’s distributed.
A will can be created any time in your lifetime, so long as you are over the age of eighteen and of sound mind. It can also be revised as needed. It’s best to create a will before you urgently need it and revise as needed rather than waiting until you feel like it’s the right time.
The truth is, there is no “right time” and unfortunately people often pass away unexpectedly without a will, leaving their wishes unknown and their property division up to the government.
In Wisconsin, creating a will isn’t difficult with the help of an attorney. The steps to creating a will are:
Review and sign the will with the attorney and two witnesses. Witnesses are required to make the will valid in the state of Wisconsin. There also may be a notary to sign and stamp your will.
With the help of an attorney, creating a will is easy, and the result is peace of mind for you and your loved ones.
People have the expectation that when they create a will, their final wishes will be honored. Unfortunately, sometimes common mistakes people make when creating their will lead to disputes, delays, or other unintended consequences. Here are the top mistakes to avoid when creating a will:
Estate planning attorneys have the experience to help you draft a will that is legally valid and protected against challenges. They can also integrate the will with other legal documents you or your assets may be affected by, like beneficiary designations, trusts, prenups, and more.
Attorneys have the expertise to avoid ambiguous language and to draft your wishes clearly using precise instructions. Complex situations or special assets can be addressed appropriately. Working with an attorney ensures all assets and needs are accounted for.
While a will is an important legal document that helps conduct and guide your final affairs after you pass, some things that cannot be done via a will.
A person cannot distribute property that they do not wholly own and have the right to distribute. If a property has its own legal structure or contract, that may take precedence over a will.
While a will guides the distribution of assets after death, it does not avoid the probate process in the state of Wisconsin. Even with a will, the estate will go through probate to confirm the will is valid and that debts and other obligations are addressed before assets are distributed.
Decisions about a funeral, burial, or cremation are often made within days of a person passing. That leaves little time for family to locate and consult a will. A will is primarily for the purpose of distributing property, not stating funeral preferences. Funeral arrangements requested within a will are not legally binding.
A will does not inherently reduce estate taxes. If reducing estate taxes is a priority for you and your family, a will can play a part in a broader estate planning strategy that minimizes taxes. That strategy may include a trust, charitable contributions, and/or gifts given during life.
A will should be updated whenever there is a major life change that impacts the estate, beneficiaries, or your wishes. Common life changes include a marriage or divorce, the birth or adoption of a child, and the death of a beneficiary or executor.
Changes in major assets or overall wealth could also prompt a desire to change how those assets are distributed. A major life change like moving to a different state or country would also be a good reason to review your will to confirm it is valid and enforceable in your new location.
If an individual dies without a will, it’s called dying “intestate,” and their assets will be distributed according to state laws. In Wisconsin, there is a priority list of relatives that the court will use to determine who should inherit the estate. Spouses and children are priority, but if there are none, the court will then move to grandchildren, parents, siblings and other relatives. If no relatives are found, the assets will go to the state.
There are some notable omissions in Wisconsin’s succession laws. Foster children receive nothing, nor do unmarried partners, regardless of the length of relationship. And stepchildren only receive half of any non-marital property (property held outside of shared marital assets).
This is just one of the reasons a will is critical to ensure your estate is distributed according to your wishes.
A will is an important part of estate planning, but there are some benefits it does not offer that trusts do. Trusts help families avoid probate, handle complex assets, and distribute assets on a schedule. They can also be useful for tax purposes and to help account for disabled dependents and other specific circumstances. Likewise, there are things a trust cannot do, like designate guardians for minor children or account for assets not in the trust. Both wills and trusts are components of a robust estate planning strategy.
While there were different legal definitions for a Will versus a Testament in the past, today these terms are interchangeable and mean the same thing. A “will” used to be a document that distributed real estate property, and a “testament” distributed personal property. It makes more sense to distribute all types of property through one single document, and so now individuals make one single “will and testament” and it’s often shortened to simply a will.
Create a plan for your family’s future today. Contact our Wisconsin estate planning attorneys for assistance in last will & testament preparation.
