A Last Will and Testament Does Not Avoid Probate

June 28, 2016

A Last Will and Testament (will) is a great first step for an estate plan and is often one key part of a quality estate plan. However, a will alone does not avoid probate.

Common Misconception

As estate planning attorneys, one of the more common misconceptions we hear from potential clients is “I have a will and therefore my estate will avoid probate.” Having a will in place is indeed a good first step in estate planning, but in and of itself, it does not avoid probate – especially in the State of Wisconsin.

So What is a Will?

A will is a document which is signed during your lifetime, and which sets forth who will be in charge of your estate (called a personal representative in Wisconsin and an executor in most other jurisdictions) and names the beneficiaries of your probate estate. According to Wisconsin law, any assets passing through a will must go through the Wisconsin probate process.

What Does a Will Accomplish?

In many ways, a will is like an instruction manual. It tells your family, lawyers and the courts who is to be in charge of your estate after you pass, and who will receive what assets upon your death. While a will is a powerful document that can perform a number of functions, in this article, we will discuss three of the more important powers of a will.

1. Names a Personal Representative Who You Want to Be in Charge

By naming the personal representative, you are setting forth your desire of who you want to handle your estate, including tasks like paying bills, filing taxes, and distributing property. However, in Wisconsin, simply naming a person in a will to handle your estate affairs does not empower this person to act without court involvement. That empowerment must come through the probate court.

2. Names Your Beneficiaries Who are to Receive Assets

A will also sets forth who will receive certain items of personal property, real property and other assets upon your death.

3. Address Issues for Minor Children

If you have minor children, you can provide for a trust in a will for the benefit of your minor or younger children. You can also appoint guardians for your minor children.

In effect, a will is a valuable estate planning tool and can help avoid family quarrels and disagreements, by setting forth your wishes in advance. Yet in Wisconsin, a will does not accomplish probate avoidance. As such, a will serves more as a guide of what you desire during the probate process.

Why Doesn’t a Will Avoid Probate?

Assets that pass through a will, such as a house or assets without a beneficiary in the decedent’s name alone, are considered probate assets. Even though a will says who will receive your assets and names who will be in charge as the personal representative, the laws of Wisconsin require court involvement for your desires set forth in a will to take effect.

Wisconsin law requires the probate process in order to empower your personal representative named in a will, which in turn opens up and requires an entire probate process to handle your desires and wishes set forth in your will. The person you named as personal representative will not be able to sell your house or close out a bank account or do any of the other necessary duties as personal representative without being appointed by the court.

What is the Probate Process?

Although discussing the probate process is beyond the scope of this article, the following contains a brief overview of the process.

First, as mentioned above, for your personal representative to be empowered to act and empowered to handle your matters, he or she must first be officially appointed by the court through the issuance of “Domiciliary Letters.” In order for these letters to be issued by the court system, it requires that the probate process be started. Once the probate process is started, the probate must be fully administered, which will require appointment, inventories, tax clearances, accountings and all related matters.

The probate process is generally something our clients want to avoid due to delays, increased costs, loss of privacy (probate is a public process) and the hassle of dealing with the court system and archaic probate laws in Wisconsin.

If It Does Not Avoid Probate, Why Have a Will?

First, it is the proper way to nominate guardians for minor children in the event of your passing.

Second, if you do not have a more robust estate plan, a will is better than leaving your desires up to state laws. A will can help avoid conflict following your death by setting forth who you want to handle your affairs and who is to receive your personal property and other assets.

Finally, even a revocable trust plan that avoids probate, typically has a “pour-over-will” as a safety net that simply states who will be in charge to handle your affairs and directs that any assets passing through your will be distributed to your trust. A revocable trust plan normally is set up to avoid probate, but a “pour-over-will” is an important safety feature to make sure that certain assets end up in your trust, even if probate is required.

The Important Take Away

A will is a valuable tool and something that is part of almost any estate plan. It can even be the cornerstone document in an estate plan that is not more robust. It is valuable tool for avoiding fights and setting forth your desires.

Yet, a will alone will not avoid probate. Avoiding probate takes more than a will and usually requires more detailed estate planning.

If you’re interested in reviewing your will, or in updating your estate plan, we welcome you to contact our experienced estate planning lawyers on 262-658-2181 or info@wokwicz.com.