If You Don’t Have a Will, Who Makes the Decisions?
Who should receive your property? Who should handle your estate? Who would you want to care for your children if something happened to both parents?
Most people have an answer to these questions. The problem is that many people never put those answers into a legal document.
A will gives you a way to clearly state important wishes for after your death. For parents, it also provides a place to nominate guardians for minor children. As part of a complete estate plan, your will can help give your family clearer instructions during a difficult time.
At Margerie Law, we help individuals and families in Milwaukee, Wauwatosa, Brookfield, Elm Grove, and nearby Wisconsin communities create wills and estate plans that are easy to understand.
You do not need a complicated estate to need a will. You simply need people or property you care about and decisions you would rather make yourself.
What Does a Will Actually Do?
A will is a legal document that provides instructions for certain matters after your death.
Depending on your situation, your will can:
- Name beneficiaries who should receive property from your estate
- Name a Personal Representative to handle your estate
- Nominate guardians for minor children
- Provide instructions for how certain property should be handled
- Work with trusts and other parts of your estate plan
Your will gives you an opportunity to make these choices yourself.
Without one, Wisconsin law may determine how property in your probate estate passes, and a court may need to make decisions that you could have addressed ahead of time.
A will does not control everything you own, and it does not replace every other estate planning document. But for many families, it is one of the most important pieces of the plan.
Why Is a Will So Important for Parents?
Parents often have the strongest reason to stop putting off their wills. Your children depend on you for everything today.
If something happened to both parents, who would you want to step in?
A will allows parents to nominate the person they would want to serve as guardian for minor children. This can be one of the hardest estate planning decisions to make.
You may be choosing between siblings, parents, close friends, or other people you trust. You may worry about where your children would live, whether they could stay near family, or whether the person shares your parenting values.
There may not be a perfect choice. The important thing is to make your wishes known.
You should also consider a backup guardian in case your first choice cannot serve when the time comes. A conversation with an estate planning attorney can help you work through these questions without expecting you to have every answer before your first meeting.
Who Should Be Your Personal Representative?
Your will also allows you to nominate a Personal Representative. This person is responsible for handling your estate after your death through the applicable estate administration process.
The role can involve gathering information about property, handling bills and expenses, working with professionals, addressing required paperwork, and distributing estate property according to the will and Wisconsin law.
Choose someone you trust. Being a close family member does not automatically make someone the best choice.
Think about whether the person is responsible, organized, willing to handle paperwork, and able to deal with family members during an emotional time.
You should also name a backup. Life changes, and the person you select today may not be able to serve years from now.
What Property Does a Will Control?
This is one of the most important things to understand about wills. A will does not necessarily control everything you own.
Generally, your will addresses property that becomes part of your probate estate. Other assets may pass in different ways.
For example, a life insurance policy may have a named beneficiary. Retirement accounts may also have beneficiary designations. Some property may be jointly owned in a way that affects what happens after one owner dies. Assets properly held in a trust may be controlled by the trust.
That means you cannot look at your will by itself. Your will, account ownership, beneficiary forms, trusts, and other parts of your estate plan should work together.
Otherwise, you could write one thing in your will while an old beneficiary designation sends an asset somewhere else.
What Happens If You Die Without a Will in Wisconsin?
Dying without a valid will is commonly called dying “intestate.” This does not mean that your property simply disappears or automatically goes to the state.
Wisconsin law provides rules for who inherits probate property when there is no valid will. The result depends on your surviving family members and other circumstances.
The important point is that you are no longer the person choosing the plan. State law provides the default. That default may be close to what you would have wanted, or it may be very different.
You also lose the opportunity to use your will to nominate your preferred Personal Representative and guardians for minor children. Creating a will gives you a voice in those decisions.
Does a Will Avoid Probate?
A will does not automatically avoid probate. This is a common misunderstanding.
A will provides instructions for property that passes through your estate, but the probate process may still be required depending on the property you own and how it is titled.
If avoiding probate is one of your main estate planning goals, there may be other tools worth discussing. A trust may make sense in some situations. Beneficiary designations and ownership arrangements can also affect how property transfers after death. That does not mean everyone needs a trust.
The right approach depends on your family, property, and goals. We can help you understand your choices without making your estate plan more complicated than it needs to be.
Do You Need a Will or a Trust?
Many people assume they have to choose between a will and a trust. That is usually not the best way to think about it.
Wills and trusts do different jobs, and estate plans involving a trust often still include a will. A simple will-based estate plan may be enough for many individuals and families.
Other people may have reasons to consider a trust. They may want more control over how assets are managed for beneficiaries, have specific probate concerns, own certain property, or have family circumstances that make a trust useful.
Parents should also remember that a trust does not replace the guardianship nomination made through a will.
The goal is not to choose the document that sounds more advanced. The goal is to use the documents that actually fit your life.
A Will Does Not Replace Your Powers of Attorney
A will primarily addresses what happens after your death. But what happens if you are alive and cannot make decisions for yourself?
That is where other estate planning documents become important. A Durable Power of Attorney can allow someone you trust to handle certain financial matters during your lifetime. A Healthcare Power of Attorney can name someone to make healthcare decisions if you cannot make those decisions yourself.
Your will cannot simply take the place of these documents. This is why we usually discuss wills as part of a larger estate plan rather than treating the will as the entire plan.
You want to prepare for what happens after death, but you also want clear instructions if an illness or accident affects you during your lifetime.
When Should You Create a Will?
There is no need to wait until retirement. For many people, the need for a will begins much earlier.
Having a child is one of the clearest reasons to create or update a will because parents need to think about guardianship. Marriage can also change your planning needs.
Buying a home, building retirement savings, starting a business, getting divorced, or experiencing other major life changes can also be reasons to create or review your will. You may also need a will if you are single and do not have children.
Perhaps you want property to go to a sibling, friend, partner, niece, nephew, or charity. A will can help put those wishes in writing rather than relying only on Wisconsin’s default inheritance rules.
You do not have to reach a certain age or level of wealth before estate planning becomes important.
When Should You Update Your Will?
Creating a will is not necessarily a once-in-a-lifetime task. Your life changes, and your will should continue to reflect it.
Consider reviewing your will after major events such as:
- Marriage
- Divorce
- Birth or adoption of a child
- Death of someone named in your will
- Buying or selling significant property
- Major changes in your finances
- Changes in family relationships
- Moving to Wisconsin from another state
You should also review an older will even if nothing dramatic has happened. Ask yourself whether you would still choose the same Personal Representative.
Would you still nominate the same guardians? Are the beneficiaries still the people or organizations you want to include?
If the answers have changed, your will may need to change too.
Can You Change Your Will?
Yes, wills can generally be changed while you have the legal ability to make those decisions. Sometimes a change may involve a properly prepared amendment called a codicil. In other situations, preparing a new will may make more sense.
Do not simply write changes onto your signed will or cross out language you no longer want. Making informal changes can create questions about whether the document is valid and what you actually intended.
If something important has changed, bring your current will to your estate planning attorney and discuss the best way to update it.
Where Should You Keep Your Original Will?
After your will is signed, store the original somewhere safe and accessible. Your family should know that you have a will and where the original can be found. You do not necessarily need to tell every family member what the will says.
However, your Personal Representative or another trusted person should have enough information to locate the document when needed. Think carefully before placing the only original somewhere that could be difficult for your family to access.
The goal is to protect the document from loss or damage without hiding it so well that nobody can find it. It is also helpful to keep your estate planning documents organized together so your family knows where to begin.
Frequently Asked Questions About Wills in Wisconsin
Do I need a will if I am married?
Marriage does not make a will unnecessary.
A will gives you a way to document important choices about your estate and nominate a Personal Representative.
Parents can also use a will to nominate guardians for minor children.
Do I need a will if I am single?
A will can be especially useful if you want property to go to people or organizations that may not receive it under Wisconsin’s default inheritance rules.
It also allows you to choose the person you want to handle your estate.
Do I need a will if I don’t own a house?
You can still benefit from having a will.
Your estate may include bank accounts, vehicles, personal property, investments, and other assets.
Your need for other estate planning documents, such as powers of attorney, also does not depend on homeownership.
Can I name more than one guardian for my children?
Parents often nominate a couple or another person they trust and can also name backup choices.
Guardianship decisions deserve careful thought because circumstances can change before the nomination ever needs to be considered.
Does the person I name as guardian also have to manage my children’s money?
Not necessarily.
Different people may be appropriate for different responsibilities.
The person you trust to raise your children may not be the same person you want handling financial matters.
Your estate planning attorney can help you think through these roles.
Can I leave money to my children in my will?
Yes, but how an inheritance should be handled for young children deserves careful planning.
Parents may want assets managed for children rather than distributed directly to them as soon as legally possible.
A trust may be used as part of that planning.
Can I leave money to a charity in my will?
A will can include gifts to charities and other organizations.
Be clear about the organization you intend to benefit so there is less chance of confusion later.
Does my will control my life insurance?
Usually, a life insurance policy with a valid beneficiary designation passes according to that beneficiary designation rather than instructions in your will.
This is why beneficiary reviews are an important part of estate planning.
Does my will control my 401(k) or IRA?
Retirement accounts commonly use beneficiary designations.
Your beneficiary forms should be reviewed along with the rest of your estate plan so your choices work together.
What happens if my Personal Representative cannot serve?
This is why naming a backup Personal Representative is helpful.
If your first choice cannot or will not serve, the alternate you nominated may be able to step into the role, subject to the applicable legal process.
Is an old will still valid?
Age alone does not necessarily determine whether a will is valid.
However, an old will may no longer reflect your current family, assets, or wishes.
If your will was created years ago or in another state, have an attorney review it.
Is a handwritten will valid in Wisconsin?
Wisconsin has legal requirements for executing a valid will.
Do not assume that writing and signing your wishes on your own will create a valid Wisconsin will.
If you want your wishes documented, it is safer to make sure the document follows the applicable requirements.
Can I make a will online?
Online services can create documents, but they cannot know your entire family situation or automatically identify problems with your plan.
The document itself is only one part of estate planning.
You also need to think about guardians, beneficiaries, your Personal Representative, account ownership, beneficiary designations, powers of attorney, and whether other planning tools are appropriate.
Working with an estate planning attorney gives you a chance to ask questions before the documents are signed.
Your Will Should Make Things Clearer for Your Family
A will is ultimately about giving direction. Your family should not have to guess whom you wanted to handle your estate.
Parents should not leave their wishes about guardianship unaddressed simply because the conversation is uncomfortable. And the people you care about should not have to wonder whether an old document still reflects what you wanted.
You do not need a complicated plan simply for the sake of having one. You need documents that reflect your family, property, and wishes and that work together. For many people, creating a clear will is the place to begin.
Talk With a Milwaukee Will Attorney
Creating a will is one of the simplest ways to put important decisions in writing and give your family clearer direction for the future.
At Margerie Law, we help individuals and families throughout Milwaukee, Wauwatosa, Brookfield, Elm Grove, and nearby Wisconsin communities create wills and estate plans that fit their lives.
We can help you think through beneficiaries, guardians for minor children, your choice of Personal Representative, and how your will should work with powers of attorney, trusts, beneficiary designations, and the rest of your estate plan.
You do not need to know exactly what your will should say before contacting us. Bring your questions, tell us about your family, and we will help you understand your options.
Call Margerie Law at (414) 254-4784 to talk with a Milwaukee will attorney. Our offices are located in Wauwatosa and Elm Grove, Wisconsin.
About Us
Hi, I'm Paul and I believe I'm the best estate planning attorney in Brookfield, WI. I help my clients understand their options and put a plan in place to protect their most valuable assets for future generations. Working closely with top financial professionals I help families of all sizes and types plan for tomorrow in order to enjoy today. I proudly serve clients in Milwaukee, Brookfield, Elm Grove, Wauwatosa, and throughout SE Wisconsin. If you need Estate Planning help, a Will, a Trust setup, or are just looking for some life planning advice, give me a call today.
