There are probably few subjects in law which are surrounded by more myths and misinformation than the subject of Wills and the distribution of estates. Many people believe that not having a Will allows the State to take part of the estate, that having a Will automatically reduces taxes, and that having a Will keeps an estate out of Probate Court. None of these are true. All of these misconceptions can be cleared up by visiting with an attorney to discuss your estate planning options.
The purpose of this section of our web site is to provide a brief explanation of what a Will can do, and some practical advice on why a Will is needed. We hope you find this information helpful.
What Happens Without a Will?
In Wisconsin, if you die with assets in your name, and without a Will:
The division and distribution of your estate is governed by a statute called the "intestate" law. ("Intestate" simply means dying without a Will.) If you are survived by a spouse, your estate will go to your spouse in the event of a first marriage or will be divided between the spouse and children of a prior marriage in the event of subsequent marriage. If you have only children (or grandchildren), and no spouse, the estate is divided among your children (or grandchildren). If you have neither spouse, children, nor grandchildren, the estate may be distributed to your parents, brothers and sisters, grandparents, aunts and uncles, or cousins, depending upon who survives you.
An individual (such as your spouse or eldest child) is usually appointed to serve as the administrator of your estate, to collect your assets and settle your estate. In Wisconsin that person is known as your "Personal Representative".
If you have minor children and your husband or wife did not survive you, a court will appoint a Guardian for their persons.
If you have minor children who inherit from you, a court will appoint a Guardian for their assets until they reach the age of eighteen.
A Will Can Protect Your Husband or Wife
Most people assume that, if a husband or wife dies without a Will, everything goes to the survivor of them. That is certainly true in a first marriage and of jointly owned property; however, if the property is not jointly held or the marriage is a 2nd or 3rd marriage, the surviving husband or wife is entitled to only about one half the individually owned assets of a deceased spouse, the rest of the assets passing to the children. Your husband or wife could therefore be very surprised to find, after your death, that half of your property has passed to your children.
If you want to control who receives your property after your death, it is usually a good idea to have a Will to avoid any possible confusion or surprise.
A Will Can Appoint Guardians for Your Children
If you have minor children, you have the right to appoint the Guardian who will take care of your children upon the deaths of you and your spouse.
For many people, this is the most important function of a Will. Most people find that their estate distribution plan doesn't vary greatly from the laws of intestacy; however, they justifiably have strong feelings as to who is selected to raise their children. Without a Will, the court will make that determination.
A Will Can Appoint A Personal Representative
The job of a Personal Representative of an estate is usually not as complicated as many people think, especially if an attorney is working with the Personal Representative to settle the estate. It is really just a matter of finding the assets, paying the debts, paying the taxes, and distributing whatever is left. However, there are sometimes disputes about who should be the Personal Representative when there is no Will. Having a Will that names a Personal Representative can eliminate these kinds of problems.
A Will Makes Your Final Wishes Known To Your Family
We typically give clients another document to fill out with their Will that states what their last wishes are. If there is somewhere in particular that you would like to be buried, or something in particular you would like at a memorial service, this is the time and place to write those things down so that your loved ones may carry out your last wishes. This document, along with your Last Will and Testament, should be kept in a safe place that you make your family aware of, should they need to find it.
Any information presented on this website is not legal advice nor does its viewing constitute the formation of an attorney-client relationship.