My Will means I avoid Probate, right?
Unfortunately, having a Will does not automatically allow you to avoid probate. This is a common question clients ask. They often have a Will and believe that merely naming a child as the personal representative will give that child the ability to carry out their wishes after death.
Most clients want to avoid probate. Their family has either had a bad probate experience, or they’ve heard horror stories. They are surprised when I tell them their Will does not do what they think. Just the opposite: their plan actually forces their loved ones to go through probate.
Why does a Will require probate? Because by itself, a Will does not give legal authority to anyone. Probate is the process by which the court authorizes someone (the personal representative) to actually carry out the wishes in your Will. Without the court’s authority, the personal representative does not have legal authority to sell real estate or vehicles.
If you are not afraid of probate, I still recommend having a Will. A Will helps streamline the probate process. It also allows you to clearly state your wishes. Without a Will, you are left to the mercy of Wisconsin’s law of intestacy, which sometimes have a plan much different than what you would like to do. For example, a child you would rather not receive anything would automatically be included under Wisconsin intestacy law.
If you’d rather not have your family go through probate, there are ways to avoid it. Naming beneficiaries on accounts or incorporating a trust in your plan are common ways to avoid probate. In addition, Wisconsin law allows married couples to use marital property agreements to avoid probate, and anyone to utilize a general nonprobate transfer document under chapter 705, providing tremendous flexibility, often at a cost that is less than a trust.
Whether you prefer a Will or a probate-avoiding option, you should consult with an experienced estate planning attorney to make sure your plan will carry out your wishes. Contact our office today to set up an appointment to discuss your unique planning needs.
