Wondering how you should handle your assets after death? Although a Will is the most common, and probably most notable, way for people to state their preferences about how their assets should be handled after their death, it can be overridden by beneficiary designations on specific assets and by the terms of your Revocable Living Trust (refer to our prior days’ posts)


What Is the Purpose of Your Last Will and Testament?

A will indicates how the will’s maker (testator) wants his or her probate property distributed at death. A probate estate includes real estate and personal property, including cars, furniture, bank accounts, stocks and other belongings, AS LONG AS the testator does not share ownership and the property does not have a POD or TOD designation and is not titles in trust. A will can also name a personal representative, establish a testamentary trust and designate a guardian to care for minor children.


Personal Will Pros

  • Can be amended, changed or revoked any time prior to the testator’s death
  • Can have an executor and a contingent executor as the decedent and her or his family’s personal representative, instead of leaving it to the courts to designate an administrator
  • A will can designate primary and contingent guardians for minor children
  • Can decide who receives or does not receive a share of the estate. A spouse can’t be disinherited
  • In Wisconsin, upon divorce, all provisions of a will that favor a former spouse or the former spouse’s relative(s) are automatically and fully revoked unless the will states otherwise
  • A will can help in the estate planning process by minimizing the estate tax burden at the spouse’s death by maximizing the marital deduction


Personal Will Cons

  • Beneficiaries can contest the will, which can lead to substantial administrative and legal expenses and can take time to resolve
  • A will can’t delay the receipt of assets by beneficiaries. Once the will is probated, beneficiaries receive their assets as soon as able
  • A poorly written will can be rejected by the courts and the decedent can be considered intestate
  • The property will pass through probate and is therefore subject to fees, transfer costs and delays
  • A will can include “pour-over” language that transfers assets to the testator’s revocable living trust at death to minimize probate proceedings and facilitate distribution to beneficiaries
  • A will is a matter of public record
  • Property passing to a grandchild by will is subject to a generation-skipping transfer tax