Wisconsin Wills, Trusts, and Probate

As we get older, a thought that often crosses our minds is planning for death or incapacity. These thoughts should prompt one to look into estate planning tools such as a will or trust. Irrespective of one's wealth or age, proper estate planning is of great importance if one wants his or her property division wishes to be honored upon death. The information provided below will give you a base of knowledge regarding wills, trusts, and probate in Wisconsin. Even with this base of knowledge, one should consult a Wisconsin estate planning attorney before creating an estate planning mechanism to ensure it complies with Wisconsin law.

Wisconsin Wills

Requirements of a Valid Will

As a prerequisite to make a will, a person must be mentally sound and at least 18 years old. A legally valid will in Wisconsin must also include:

1. Writing: the will must be in writing.
2. Signature: you must sign the will or have another person sign on your behalf and in your presence and with your approval.
3. Witnesses: within a reasonable time after witnessing you sign the will or you physically point out and acknowledge your signature, there must be two disinterested individuals who sign the will.

Changing a Will in Wisconsin

There are two ways in Wisconsin if you want to change your will:

1. Revoke the prior will and make an entirely new will; or
2. Through an amendment or codicil

In regard to revocation, there are a variety of ways that a will may be revoked. First, creating another legally valid will that is intended to revoke the previous will, regardless of whether this intent is express or not. Second, a physical act such as burning, tearing, or otherwise destroying the will may be sufficient for revocation. Finally, divorce, annulment, or a similar event severing the marriage would effectively revoke the provisions in the will that list the former spouse as a beneficiary.

Another method by which to alter a legally valid will is through a codicil. A codicil refers to the addition of a separate document to the will that contains additions/revisions. When revoking a will either by executing a new will or by a codicil, the initial will is revived unless you provide evidence that the previous will was not intended to take effect. When deciding to revoke a will by codicil, it is imperative that it conforms to Wisconsin probate laws. As such, before making changes to your will, be sure to consult a Wisconsin will attorney.

Wisconsin Trusts

Wisconsin law also recognizes another way of distributing assets upon death—trusts. A trust is often used as an alternative to a will or as an addition to a will. There are several different kinds of trusts recognized under Wisconsin law, including honorary trusts, cemetery trusts, and private foundations.

Each trust has a "trustee" that takes title to property on behalf of another who benefits from the trust. Along with this power to take title, there are duties and responsibilities that a trustee inherits regarding management, investment, and sale of the trust. A trustee may resign from his or her post by following the terms of the created trust. Additionally, a court may remove a trustee, upon a motion by a co-trustee or trust beneficiary, for failing to abide by the terms of the trust. Due to the complex nature of creating a trust, one should consult a Wisconsin estate planning attorney to help set up a trust that will be personalized for your situation.

Wisconsin Probate

A Wisconsin resident's property may pass through probate when he or she dies. Unless the deceased provides a will that directs how his or her property should be distributed, property goes through the probate process in Wisconsin. When one dies intestate—without a will—an executor will be appointed by the court to pay off the deceased's debt, distribute the deceased's property, and other estate related tasks. In regard to the distribution of property, Wisconsin's law of intestate succession allows the following people to hold interests (non-exclusive):

1. Spouses or domestic partners
2. Descendants – children, grandchildren, etc.
3. Parents
4. Brothers or Sisters of deceased and their children
5. Grandparents

A few things should be noted regarding intestate succession. First, a child born out of wedlock is treated in the same manner as a child born to married parents. Second, a deceased's property interest in a home should be transferred to his or her surviving spouse or domestic partner, unless there is a will or other document indicating the deceased intent to transfer the property to someone else. Finally, a beneficiary of the will is not disqualified from receiving such a benefit because he or she is not a U.S. citizen. Due to the complexity of the probate process, a Wisconsin probate attorney should be consulted if any questions or concerns arise during the probate process.

Wisconsin Statutes - Wills, Probate, Trusts

1. Wills—requirements
1. Wisconsin Statutes, 853.01; 853.03; 853.07
2. Wills—changing a will
1. Wisconsin Statutes, 853.11
3. Trusts
1. Wisconsin Statutes, 701.01-701.26
4. Probate
1. Wisconsin Statutes, 852.01-852.13