The K & B Blog

“I just don’t have the time.”

“I don’t need a will, my family already knows my wishes.”

“I don’t like the prospect of planning for my own death.”

These are all common excuses proffered by the nearly fifty-percent of Americans who do not have a will. Whether you are single, married, young, old, wealthy, or middle-class, having a will in place which specifically delineates your wishes upon death is in the best interest of you and your loved ones. If you have accumulated any assets whatsoever, and you care who will receive those assets in the event of your death, you should have a will in place. It is particularly important to draft a will if you are the parent of minor children; so that a guardianship and trust can be established should anything happen to you and your spouse.

Dying without a will (or intestate, as it is legally termed) means that your estate will be administered according to the Wisconsin default rules of intestate succession. Oftentimes, these default rules conflict with the ultimate wishes of the decedent and create unnecessary issues for surviving family members. These situations become increasingly complex for those persons with children from multiple marriages. Furthermore, dying without a will allows the probate court to appoint a personal representative to oversee administration of your estate. If you draft a will, you designate your own personal representative. Don’t let the default rules dictate the dispositions made to your loved ones upon your death. As with any other major financial decision in your lifetime, it is vitally important that you weigh all of your options and engage in reasoned decision-making during the will drafting process.

Here are some helpful tips to keep in mind if you already have a will in place:

• In order to be legally binding, your will must be in writing, dated and signed, and signed by at least two other disinterested witnesses (the witnesses should not be beneficiaries named in the will).

• Creation of a new will automatically voids and revokes all previous wills you have made.

• A supplement to a pre-existing will (also called a codicil) must satisfy the same execution requirements as the original will in order to have binding legal effect.

• Wisconsin is a marital property state, which means that any real property titled in the name of both you and your spouse will automatically pass to the surviving spouse outside of probate.

• Any remaining proceeds in life insurance or retirement plans will automatically pass to designated beneficiaries outside of probate.

• Store your will where it is safe from theft, fire, or other physical damage—preferably in a safe-deposit box. Your attorney should retain a conformed copy or the original.

• Ensure that your designated personal representative knows where your will is located and provide them with a copy—especially if your will dictates your wishes for funeral arrangements.

• Understand that a last will and testament is separate and distinct from a “living will.” Living wills allow you to state in writing your wishes regarding life-prolonging medical treatment in the event that you become incapacitated.

• Consider “transferable on death” forms of ownership for certain assets to avoid probate.

A will is a legal instrument that is interpreted by judges during the probate process. Therefore, wills should only be drafted by an experienced attorney who is familiar with the necessary language and structure to ensure your wishes are carried out to their fullest extent and that your will is legally enforceable. John M. Kelly, Attorney at Law, LLC is home to 42 years of experience in estate planning. Attorney Kelly has extensive expertise in the drafting of wills, establishment of trusts, and probate administration. Call today to ensure that your loved ones are provided for in a manner that is consistent with your wishes.