As you Will: What is a Will?

Wills
The most commonly-known type of document used in estate planning, the will may seem straightforward, but it has a complex interaction with the various other tools used in estate planning. Read on to learn more about the will and how it works.
 
What is a will?: A will is a document that instructs the Probate court on the following:

• Your personal representative, who will be responsible for managing and distributing your estate.
• What and who will receive assets that pass through probate. (Including both individuals and charities)
• Who will raise your children if they are still minors and your spouse is not available to raise them.
• How individuals will receive their share of assets. (Either outright, or in trust)

What does a will not do?: A will does not do the following:

• Deal with assets that do not pass through probate. It does not select how they should be managed or to whom they should go.  Such assets commonly include: life insurance, bank accounts held in certain forms of title, real estate held in certain forms of title, retirement accounts, stock portfolios, bonds, and other forms of property with beneficiary designations.
• Deal with your healthcare decision-making. (This is handled by either a healthcare power of attorney or what is known as a living will)
• Help you to avoid probate. (This is mainly accomplished through use of a revocable trust)

What happens if I don’t have a will?: Lack of a will is covered by Wisconsin’s intestacy law, which has the following impact:

• Your property will be distributed to your spouse or domestic partner, unless you have children from outside of the current marriage, in which case your spouse or domestic partner would get half of the property and all of your children would receive the other half. If your spouse predeceases you, your children will receive your property. If you do not have a spouse or descendants, your property would go to your parents, then siblings, then cousins, then grandparents and your grandparent’s descendants.
• Any share of property given to a child will likely be held in a Uniform Transfers to Minors Account, to be used for that child’s benefit.  It is not possible to keep a single account to be given to the children as their needs arise.
• The court will choose your child’s guardian. This makes it more likely that such guardianship will be supervised by the court, including requiring that the guardian make annual accountings to the court.
• The court will also choose a personal representative for you, and make them responsible for the management and distribution of your estate.

While a will may not be necessary for everyone, it is drastically important if you have children or if you want to have control over to whom and how your assets are distributed.
For the most up-to-date information about wills and estate planning, contact Elder Law Attorney Derrick Heller-Neal at (262) 902-0595 or email: [email protected] to set up a free consultation.
 
Derrick Heller-Neal is an Estate Planning and Elder Law lawyer located in Racine, Wisconsin.

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