Wills – Be in Control of Your Family’s Affairs
Frequently Asked Questions About Wills
What is a Will?
Simply put, a Will is a legally binding document that allows you to designate the following:
- The individual who will own your assets after you die. Your estate includes property you own that doesn’t pass to another person by joint ownership or beneficiary designation.
- The name of the individual who will take custody of your children before they reach adulthood. It applies only when your spouse is dead or unavailable.
- In the Will, you will state whether the beneficiaries of your Will are going to take their inheritance outright or spread out through a Trust.
- Your Will includes the name of your Personal Representative after you die. This person will be placed in charge of your estate and be responsible for distributing your property to other beneficiaries.
When should I write my Will?
- There is never a wrong time to create a Will. Some people only think that “rich” people need a Will. That simply isn’t true. Everyone needs a Will.
- When you have minors in your home, it is imperative that you draft a Will for their sake. Your Will should state the name of the person who will be responsible for your children in the event that you die. Make sure the prospective Guardian is acutely aware of your intention. They must be willing and able to care for your children. You also name your alternative Guardian as a backup in case your first choice is not available.
- Without a Will if you are young and you don’t have children yet, the state will distribute all your possessions to your parents if they survive you. However, if you’d rather have your significant other get your possessions you need a Will. If you want to leave something to a friend or to charities that you support, you need a Will to make that happen.
What if I die without a Will?
When you die without a Will, the court reserves the right to appoint a representative on your behalf. This representative will be charged with distributing all your assets to either your registered domestic partner or your spouse. If you have children outside your marriage, your partner will take half of your property acquired during the marriage and a half of your property acquired while you were single. Every other thing you have will be split among your children equally.
If you don’t have a spouse, surviving children/grandchildren or registered partner when you die, everything you have will go to your extended family members. This group includes your parents, brothers, sisters, parents, nephews or nieces.
If you have minor children, and you die without a Will, the court reserves the right to appoint a Guardian. It is imperative that you write your wishes in your Will when you have children, as choosing a Guardian should not be left to a stranger. Your surviving family members will be devastated if a judge makes this decision for you. It will also cost money. Naming a Guardian will help prevent the financial and emotional costs attached to court guardianship.
If you die without a Will, you will also have no power over the representative who will take over your estate. You will not be able to control how they handle your property.
What types of property pass to your beneficiaries?
- Your life insurance proceeds and your monies from retirement plans will go to the beneficiaries you designated with the insurance or investment company. It makes good sense to double check that they are correct.
- Anything labeled as Survivorship Marital Property will go directly to your spouse.
- Payable on Death and Transfer on Death accounts and assets goes directly to the named beneficiaries.
If you have assets that fall outside of these categories mentioned above you must have a Will.
Can a Will be challenged?
Yes, your Will can be contested as long as the individual contesting can prove any of the following:
- The Will was written while another person was influencing you or that you wrote under duress, such as you were not mentally stable or were incompetent at the time the Will was written.
- Your Will can also be contested when it doesn’t meet the requirements by the state.
How can I change my Will?
When you have a change that is needed and you want it to be reflected in your Will, you have two options: add a supplement Will or write a new one which will make the old one void. The supplement is legally referred to as a Codicil. This Codicil must meet the same requirements of the original will.
Where should I keep my Will?
Your Will should be safe from damage or theft. Consider putting it in a fire-proof box. A safety deposit box may not be a good idea. Your Personal Representative will have a difficult time accessing it.
Make sure your Personal Representative is aware of your Will. You can also give your representative a copy of the Will.
Is a Will written in another state legal in Wisconsin?
For your Will is to be valid in Wisconsin it must comply with the state law. It is best to have me review a Will from another state to make sure your wishes are carried out.
What is a Trust created by a Will?
You can create a Trust to go into effect when you die. This Trust keeps your property for the benefit of another individual. A Trust can help hold your property if you have minors. It can also contribute to providing your spouse with a source of income.
Your Trust is managed by your Trustee. This person will be responsible for protecting all your assets. It can be any individual you trust. The Trustee will also be able to terminate the trust as instructed by you on your will.
If I have a Living Trust, do I need a Will?
Yes, you still need a Will even when you have a Living Trust. A Will is required to transfer your assets to your trust after you die. Also, some money may be paid to your Estate after you die depending on the circumstances surrounding your death. In this case, a Will must stipulate the conditions for transferring the money to your Trust.
A Will is required to name the individuals who will represent you and the person who will be responsible for the welfare of your children. All these are not part of the responsibilities of a Living Trust. Your Personal Representative will be responsible for caring for things that are not the responsibility of the Trustee.
What is a Living Will?
It is a legally binding document separate from your Will. It isn’t part of your Will, and it isn’t the same as the health care durable power of attorney. While a health care power of attorney allows an agent make health care related decisions on your behalf, your living will allows you to specifically state all your medical preferences concerning end of life issues.
You will declare all your wishes in this Will. You can state that your doctors should withdraw or withhold non-orally ingested water or food or other life-sustaining procedures from you. Examples of such situations include: when you are living with a terminal condition or in a persistent vegetative state.
This living will takes effect when you cannot make your own decisions verbally, and there is absolutely no hope of recovery. Your agent can make such decisions on your behalf if granted the power. If you have a living will and a healthcare durable power of attorney, your agent will make the final decisions if there is a conflict of interest.
If you want more information about Wills, Health Care Power of Attorneys, Durable Power of Attorneys, Living Wills, or Revocable Trusts please give me a call today.