Last Will & Testament FAQs

1.         What is a Will?

The Will is one of the most commonly used vehicles for the directing the manner and mechanism of the management and distribution of your assets after you are gone.  A properly drafted and executed Will allows you to: (1) Specify to whom, and in what amounts, your assets will be distributed upon your death; and (2) 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”). 

 2.         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.    

 3.         If I execute a Will, must my estate pass through probate?

 Yes, by executing a Will and not engaging in any additional estate planning you are ensuring that your estate will be administered through a probate proceeding.  Probate is the court process that, with limited exceptions, must take place after someone dies.  In general, the purpose of probate is ensure that decedent’s final expenses and debts are paid, and to transfer the assets comprising that decedent’s “probate estate” to his or her heirs.

4.         If I execute a Will, must all of my assets pass through probate? 

No.  Only those assets which comprise your “probate estate” will pass through probate.  A decedent’s probate estate typically includes all property owned by decedent except: (1) Assets titled jointly with another person; (2) Assets (e.g., a bank account) that have a “payable on death designation” to a person or persons other than the decedent’s estate; (3) Assets that pass by a beneficiary designation (e.g., life insurance proceeds, IRAs and other retirement benefits) to a person or persons other than the decedent’s estate; (4) Assets properly titled or held by a trust

 5.         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. 

6.         Can my financial 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 continuing to act on your behalf after you pass away.  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). 

7.         Is a trust a better estate planning vehicle than a Will? 

Neither the Will nor the trust is a “better” estate planning vehicle than the other in an absolute sense.  However, either a Will or a trust probably is a better fit than the other for a given client based on their life circumstances and goals.  Reasons to strongly consider a trust instead of a Will as your primary estate planning vehicle include: (1) You would like to leave assets to beneficiaries who are minors; (2) You would like to leave assets to beneficiaries with special needs that currently qualify to receive government aid (e.g., SSI, Title 19), or may do so in the future; (3) You would like to leave assets to beneficiaries contemplating bankruptcy or saddled with significant debt; (4) You have an estate large enough that you might incur an estate tax liability; (5) You do not want your estate administered through a probate proceeding.