A will indicates how the will’s maker (testator) wants his or her probate property distributed at death. A probate estate includes a decedent’s real estate and personal property, including cars, furniture, bank accounts, stocks, and other belongings, as long as:
- the decedent did not share ownership of the asset,
- the asset does not name a beneficiary via POD, TOD, or beneficiary designation, and
- the asset is not titled in trust.
A will can also name a personal representative, establish a testamentary trust, and designate a guardian to care for minor children.
Benefits
- Can be amended, changed, or revoked any time prior to the testator’s death.
- Can name an executor and a contingent executor, instead of leaving it to the courts to designate an administrator.
- Can designate primary and contingent guardians for minor children.
- Can decide who receives or does not receive a share of the estate. Be aware that, in Wisconsin, a spouse cannot be disinherited.
- In Wisconsin, upon divorce, all provisions of a will that favor a former spouse or the former spouse’s relative(s) are automatically and fully revoked unless the will states otherwise.
- A will can help in the estate planning process by maximizing the marital deduction in order to minimize estate tax assessed to the deceased spouse.
- A will can include “pour-over” language that transfers assets to the testator’s revocable living trust at death to minimize probate proceedings and facilitate distribution to beneficiaries.
Considerations
- Beneficiaries can contest the will, which can lead to substantial administrative and legal expenses and can take time to resolve.
- A will cannot delay the receipt of assets by beneficiaries. Once the will is probated, beneficiaries receive their assets as soon as able.
- A poorly written will can be rejected by the courts and the decedent can be considered ‘intestate’.
- The property will pass through probate and is therefore subject to fees, transfer costs and delays.
- A will is a matter of public record.
- Property passing to a grandchild by will is subject to a generation-skipping transfer tax.