Answering Your Legal Questions
What Is A Will?
A Will is a written document that allows you to designate:
1. Who will receive your property that does not pass by beneficiary designation nor joint ownership, after you die.
2. Who will raise your children if you die while they are still minors.
3. Whether your beneficiaries/heirs should receive their inheritance outright or in a trust.
4. Who should serve as your Personal Representative. (The old fashion term is executor for a man or executrix for a woman.) Being a Personal Representative is a significant responsibility. That is the person who will pay your bills, arrange for things to be cancelled or shut off, sold and finally distributed to your beneficiaries.
Alert: A Will should not include your funeral or burial preferences. Those should be made known in a separate document.
When Should You Have A Will?
Any one over 18 is eligible to execute a Will. You must also be competent to execute a Will.
1. Any one with minor children should have a Will. The Will can name a prospective guardian for your children.
2. Anyone with special assets they wish to leave to a particular person should have a Will.
3. Any one who wants to make a charitable bequest should have a Will.
What Happens if I Die Without A Will?
The default is that the state determines what will occur.
1. In this case state law determines where your assets go. There is a list of the order on the right of inheritances in the Wisconsin Statutes. This can become very complicated in a second marriage with children from a prior relationship or marriage. Your assets only go to the state if you have no family in your linage that are descendants of your grandparents.
2. The court will appoint a Personal Representative, who is usually a local attorney, to handle your estate.
3. The court will also appoint a guardian for your minor children if you have not selected one.
4. The court may require the Personal Representative appointed by them obtain bond, which is insurance, and the cost of which is paid out of your estate.
What Types of Property Pass to Beneficiaries Outside of A Will?
There are many types of property and manners of owning property that pass outside of a Will.
1. Survivorship marital property. Most commonly this would be a house owned with a spouse.
2. Property that is titled in joint tenancy. Commonly this would be bank accounts or other investments.
3. Life Insurance, IRAs, 401(k), 403(b), Annuities are all types of properties that pass directly to the beneficiaries you listed on the appropriate forms.
4. Transfer on Death Accounts (TOD) or sometimes these accounts are called Payable on Death (POD). These accounts go directly to the beneficiaries you have named.
Alert: Relying on structuring your estate in this manner may not be the most beneficial. For example, both you and the party named could die at the same time. Or they might have predeceased you. Or the joint tenant may be subject to a lawsuit and put you at risk. Thus, there are many risks that a Will can address properly.
What Makes A Will Valid?
In Wisconsin, there are a number of requirements.
1. The Will must be in writing and must be signed and dated.
2. You need two witnesses.
3. The witnesses must be over 18 and they can not be your beneficiaries or your heirs under the law.
Can My Will Be Challenged?
Yes, your will can be challenged. The grounds for challenging a Will in Wisconsin are:
1. If you were under duress or undue influence when you were making your Will.
2. You were incompetent or unable to understand the results of your will when making it or signing it.
3. It wasn't properly witnessed.
Can There Be A Trust in A Will?
Absolutely. A trust of this nature is called a testamentary trust. A trust in a Will may do all sorts of things for your beneficiaries.
1. A trust may hold property until a beneficiary reaches a certain age or certain ages.
2. A trust may pay for expenses and needs of a beneficiary directly.
3. A trust may protect a beneficiary from creditors claims.
4. A trust may name a trustee who provides professional management of the assets.
There are many more things a trust can do and too many to list here.
Where Should I Keep My Will?
You want to keep your will clean and pristine. In Wisconsin we have a few alternatives.
1. You may keep it in a safe or fire box at home.
2. You may keep it in a safe deposit box at a bank.
3. It can also be deposited in the Register of Probate's Vault in the county where you live. There is a one time fee of $10 for this service. If you redo your will, you can pull out your old will and deposit your new will, but there will be another $10 fee. This is my preference for my clients and myself.
A Will is a written document that allows you to designate:
1. Who will receive your property that does not pass by beneficiary designation nor joint ownership, after you die.
2. Who will raise your children if you die while they are still minors.
3. Whether your beneficiaries/heirs should receive their inheritance outright or in a trust.
4. Who should serve as your Personal Representative. (The old fashion term is executor for a man or executrix for a woman.) Being a Personal Representative is a significant responsibility. That is the person who will pay your bills, arrange for things to be cancelled or shut off, sold and finally distributed to your beneficiaries.
Alert: A Will should not include your funeral or burial preferences. Those should be made known in a separate document.
When Should You Have A Will?
Any one over 18 is eligible to execute a Will. You must also be competent to execute a Will.
1. Any one with minor children should have a Will. The Will can name a prospective guardian for your children.
2. Anyone with special assets they wish to leave to a particular person should have a Will.
3. Any one who wants to make a charitable bequest should have a Will.
What Happens if I Die Without A Will?
The default is that the state determines what will occur.
1. In this case state law determines where your assets go. There is a list of the order on the right of inheritances in the Wisconsin Statutes. This can become very complicated in a second marriage with children from a prior relationship or marriage. Your assets only go to the state if you have no family in your linage that are descendants of your grandparents.
2. The court will appoint a Personal Representative, who is usually a local attorney, to handle your estate.
3. The court will also appoint a guardian for your minor children if you have not selected one.
4. The court may require the Personal Representative appointed by them obtain bond, which is insurance, and the cost of which is paid out of your estate.
What Types of Property Pass to Beneficiaries Outside of A Will?
There are many types of property and manners of owning property that pass outside of a Will.
1. Survivorship marital property. Most commonly this would be a house owned with a spouse.
2. Property that is titled in joint tenancy. Commonly this would be bank accounts or other investments.
3. Life Insurance, IRAs, 401(k), 403(b), Annuities are all types of properties that pass directly to the beneficiaries you listed on the appropriate forms.
4. Transfer on Death Accounts (TOD) or sometimes these accounts are called Payable on Death (POD). These accounts go directly to the beneficiaries you have named.
Alert: Relying on structuring your estate in this manner may not be the most beneficial. For example, both you and the party named could die at the same time. Or they might have predeceased you. Or the joint tenant may be subject to a lawsuit and put you at risk. Thus, there are many risks that a Will can address properly.
What Makes A Will Valid?
In Wisconsin, there are a number of requirements.
1. The Will must be in writing and must be signed and dated.
2. You need two witnesses.
3. The witnesses must be over 18 and they can not be your beneficiaries or your heirs under the law.
Can My Will Be Challenged?
Yes, your will can be challenged. The grounds for challenging a Will in Wisconsin are:
1. If you were under duress or undue influence when you were making your Will.
2. You were incompetent or unable to understand the results of your will when making it or signing it.
3. It wasn't properly witnessed.
Can There Be A Trust in A Will?
Absolutely. A trust of this nature is called a testamentary trust. A trust in a Will may do all sorts of things for your beneficiaries.
1. A trust may hold property until a beneficiary reaches a certain age or certain ages.
2. A trust may pay for expenses and needs of a beneficiary directly.
3. A trust may protect a beneficiary from creditors claims.
4. A trust may name a trustee who provides professional management of the assets.
There are many more things a trust can do and too many to list here.
Where Should I Keep My Will?
You want to keep your will clean and pristine. In Wisconsin we have a few alternatives.
1. You may keep it in a safe or fire box at home.
2. You may keep it in a safe deposit box at a bank.
3. It can also be deposited in the Register of Probate's Vault in the county where you live. There is a one time fee of $10 for this service. If you redo your will, you can pull out your old will and deposit your new will, but there will be another $10 fee. This is my preference for my clients and myself.