A will documents your final wishes. Everyone over 18 should have a will.
It allows you to appoint a personal representative to carry out your affairs, select a guardian to care for your minor children, and give instructions to make sure that your belongings will be given to those you love and wish to benefit.
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What Makes A Will Legally Binding?
In the State of Wisconsin for a will to be valid, it will must be in writing, and the the person making the will also known as the “testator” must sign and date it.
At least two witnesses must also sign the will. They can do this after they observe the testator sign it. If the witnesses weren’t present, then the testator can state to them that the signature is his or hers, and then the witnesses can sign.
The witnesses should not be beneficiaries named in the will or the testator’s heirs as designated by law.
What Happens If I Die Without A Will?
If you die without a will, the emotional and financial toil on your family can be devastating. The court appoints a personal representative who distributes your entire estate to your surviving spouse or registered domestic partner, unless you have children from outside your current marriage. In that case, your spouse or registered domestic partner retains half the marital property and receives half your individual property, with the rest of your estate split equally among all your children, from this marriage and outside it.
If you have no spouse, registered domestic partner, or surviving children or descendants of children when you die, your estate goes to other surviving relatives. State law lists the order of inheritance as follows: parents, brothers and sisters, nieces and nephews, grandparents, and descendants of grandparents. The state school fund receives your assets if you leave no heirs closer than the descendants of your grandparents.
If you leave behind minor children and have named no guardian in a will, a court must choose a guardian. If a minor inherits money or property, it is likely the court will place it in a guardianship account. Ask yourself: Is that a decision you want someone to make for you? Having a judge decide who will raise your children can be emotionally wrenching for other family members. Also, court-supervised guardianships entail extra costs. Avoid the upset and expense by naming a guardian in your will.
Finally, bear in mind that if you have no will, the court will appoint a personal representative to administer your estate. Having a will allows you to choose this person. Also, you can stipulate in your will that the personal representative (if a Wisconsin resident) need not post a surety bond, thus saving money for your estate. Not having a will means your family will have to incur court costs, potential tax liabilities, and the added stress of having to attend court proceedings.
What is a Trust created by a Will?
You can use your will or a pour-over will to create a trust upon your death. The trust holds your property for another person’s benefit. For example, a trust may provide an income for your spouse, or be used to minimize or eliminate estate taxes. Or it can hold property for your minor children until they become adults. You name a trustee to oversee the trust. The trustee can be either a trusted individual (a friend, relative, or professional advisor) or a financial institution (a bank, brokerage firm, or trust company). The trustee is responsible for protecting the assets, paying out income earned, and terminating the trust as your will instructs. We help our clients draft wills that pour-over into living trusts, if needed.
If I have a Trust do I still need a Will?
Yes. A will would be important for several reasons. You may have property that never got transferred to your trust while you were alive. You would need a will to transfer that property to your trust after your death. For instance, if your death was the result of an accident, your estate may receive wrongful death benefits. Again, you would need a will to transfer this money to the trust. You also need a will in order to name a personal representative and a guardian for your minor children. That’s not part of setting up a living trust. Also, a personal representative can take certain actions on behalf of your estate that a trustee cannot, such as pursuing a wrongful death claim.
How We Can Help You?
While you’re living and healthy, you value being able to make your own decisions about your finances, property, health care, and raising your children. Should you die or become incapacitated, you hope others will handle these matters for you according to your wishes. The only way to assure that will happen is through estate planning. This process involves weighing various personal and financial decisions and creating legal arrangements to carry out those decisions. We will help you draft a carefully considered, thoughtful, and comprehensive estate plan in order to preserve wealth and assets for future generations, minimize tax liabilities, avoid probate and court costs, and to make sure your wishes are followed, providing you and your family with peace of mind.