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Renee Babcoke

If you’ve arrived at this article, it’s likely that you are looking for reliable information on creating a Wisconsin last will and testament. Wisconsin wills aren’t that different than a will from any other jurisdiction. However, Wisconsin does use a simplified process to probate estates that are under $50,000 value minus mortgages and encumbrances, what Wisconsin refers to as “small estates.” While you might have a small estate, it is still important that you have a written will showing what you want to be done with it. Here are some basic and frequently asked questions pertaining to Wisconsin's last will and testament preparation and how to decide what is right for you.  

1. What is a last will and testament really?

Although it is still sometimes called a “last will and testament” the terms can actually be used interchangeably, although they rarely are. Historically it was believed at one time that a “will” was for real property (like real estate) and a “testament” was for personal property (like a coin collection) but that is no longer the case. It can simply be referred to a will although sometimes “testament” is included in the document title.  

2. Do I need a written will?

Yes, you do need a written will in Wisconsin if you want control over the distribution of your estate. If you do not have a written will and you pass away then the court will deem you “intestate.” When a Wisconsin resident dies intestate, the Wisconsin court will apply Wisconsin state law to decide who will receive your property. Generally, the intestate property is divided between your spouse, children, parents, or the state. Below is a general breakdown of how Wisconsin law will determine how your estate is divided:

* Please note that the state does not want to take the value of your estate. The courts would prefer to have a written will and to enforce your last wishes.  

As you can see, it is important to have a written will to avoid the multitude of problems that could occur if the court is forced to distribute under the intestacy law. Taking control of your estate by having a written will drafted and signed before witnesses is a good way to avoid those problems.  

Furthermore, it is best that you have your will prepared earlier rather than later. If you are sick or elderly there is always the chance that your will could be challenged with a claim that you were not of sound mind when you created it. A solid written will created and signed at a peaceful time in your life will go a long way towards protecting your estate from potential claims of incompetence or undue influence by an outside party.  

3. What if my parents die without a will?  

If both of your parents are deceased and there is no will then the court will apply the rules of intestacy to distribute the estate. The estate will be divided equally between you and any siblings you have.

4. What if my child dies without a will?  

If your child is no longer a minor and has no spouse or children then your child’s estate will come to you through the laws of intestacy.

5. Can I change my will?  

Yes, you can change your will and, in fact, you should change your will if it needs to be updated. A will should be updated anytime there is a financial event that impacts your estate. For instance, if you are getting a divorce you will need to remove your ex-spouse from the will as soon as possible. Another example would be if you have children or grandchildren, you might want to add them to your will. A will should evolve with your life changes. You are allowed to make any changes you want to your will. You can add things to your will, take things out of your will or create an entirely new will. This can be a complex, detail-oriented process and you should consult with an estate law attorney prior to making any significant change to ensure that it is properly done.  

6. Does a will need to be notarized in Wisconsin?

No, the will does not need to be notarized. Wisconsin does not require that a will be notarized but if you want to make your will “self-proving” then you do need to have it notarized. Self-proving is when the document is signed and witnessed in front of the notary and will shorten the probate process. A part of why the courts have probate is the determine the validity of a will to ensure that it is not a fake or out of date document prior to dealing with creditors and then distributing the remainder of the estate. Attaching a self-proving affidavit to your will cuts out any time that might be required to show that your will is valid. That is not to say that you cannot have a valid will without a self-proving affidavit, just that it is an extra layer of protection when it is time to probate the will.  

7. How do I start writing my will in Wisconsin?

A good place to start would be to write down a list of what you would like to be included in the will, whatever real property you own and any personal property you believe has monetary or sentimental value to a friend or family member. Next, you should create a list of people you would like to give the property to. Finally, if you have people, you do not want to receive any property after your death, you should have them listed in case they attempt to appear in the probate and claim an interest in a portion of your estate. Once you have these lists and you are certain of them, it would be in your best interest to consult with an experienced Wisconsin estate law attorney to have the document drafted.  

8. What should you never put in a last will and testament?

Here is a simple, non-exhaustive list of what NOT to plan on including in your will:

- Any transfer-on-death accounts or payable-on-death accounts
- Life insurance policy with named beneficiary
- Any property that is already included in a trust
- Any proceeds from a retirement plan with a named beneficiary
- Any property held in joint tenancy, it will automatically transfer to the survivor
- Any odd or illegal conditions for receiving a gift, for example, “for Alisha if she is married upon my death.”  
- Do not attempt to arrange care for an individual with special needs in your will
- Do not leave things for your pet(s) in your will, they cannot receive and hold property

9. Does a will avoid probate in Wisconsin?  

Having a will in Wisconsin does not exempt your estate from the probate process. The probate process is the court verifying a will and then making certain that the terms of the will are properly carried out. You cannot use a will to avoid probate.  

10. Do I need a lawyer for my Wisconsin will?  

It depends on your goals and the size and complexity of your estate. It is always in your best interests legally to consult with an experienced Wisconsin estate law attorney if you are thinking about the future and what you want to accomplish. An attorney can properly advise you on your options and rights in Wisconsin and prepare a will for you that can achieve your goals.  

Ultimately, it’s just not enough to read through an article on the internet and use it to guide you in creating your Wisconsin last will and testament. Having a properly prepared and verified will that your family, friends, and the court system can reply on to follow your last wishes is something everyone should investigate and it would be best to consult with an experienced Wisconsin estate planning attorney to see if a will, or some other instrument that transfers property, is best for you, depending on the size of your estate and what assets your estate is made up of. If you need assistance creating and reviewing your will, give us a call at (630)-324-6666 or fill out our confidential contact form.  

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.

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