Simple Will: Often Not Adequate Estate Planning

May 15, 2019

As estate planning lawyers, we often have clients contacting us for a “simple” Last Will and Testament. Sometimes a “simple will” can accomplish our clients’ goals. More frequently however, a simple will alone is not adequate estate planning to achieve those goals.

In this article, we discuss what makes a Last Will and Testament a simple will, versus a complex will. We will also detail why a simple will often does not deliver the best estate planning solution in Wisconsin.

Defining “Simple Will”

The term “simple will” is used by estate planning attorneys to describe a will that meets certain characteristics. A simple will is generally a will that is not controversial as it follows the Wisconsin laws of intestacy*, is not likely to be challenged after death, and is easy to draft, create and enforce.

A partial definition of a simple will includes:

• The entire estate is left to your spouse, if married.
• If not married, or if your spouse predeceases you, then your entire estate is left equally to all of your children without a trust for your children. All of your children must also be adults.
• No children are being left out of the will and no children are getting more or less than another child.
• If married, there are not any children outside of the marriage. In other words, all of the children are legally children of both you and your spouse.
• Your assets that do not pass through the will, such as IRAs or life insurance, name your spouse first, if married, and then equally to your children. You also do not have joint assets with a child.

Advantages of a Simple Will

Where appropriate, a simple will has several valuable advantages:

1. It can cost less to draft and complete, so reduces attorney fees.
2. It can help to confirm your intended distributions, even if all of your assets have beneficiaries named, and can be a back-stop in case a beneficiary designation fails after death.
3. It can name who you want to be in charge of your estate after death, by naming an executor (called a personal representative in Wisconsin), to help limit any fighting over who is to be in charge.
4. It confirms your intention to leave property to your spouse first, if married, and then equally to all of your children if not married, or if your spouse predeceases you to leave your assets equally to your children.

Where A Simple Will Is Not Enough

Some of the following dictate that a simple will alone cannot be used by itself to accomplish a client’s estate planning goals in Wisconsin:

• A will does not alter nor change beneficiaries on bank account, IRAs, Life Insurance or other assets and be coordinated with non-probate assets that do not go through the will.
• A will does not change jointly titled property that would normally go to the survivor named on a joint account or joint asset.
• A will alone cannot address who will be in charge of your health care if you are not able to handle your health care due to illness or incapacity during your lifetime. A Power of AttorneySee Power of Attorney for Health Care, Financial Power of Attorney, and Durable Power of Attorney. for Health Care is needed to address your health care desires in order to avoid a guardianship.
• A will alone does not address who will be in charge of your finances, if you are not able to handle your financial affairs due to illness or incapacity during your lifetime. A Durable Power of Attorney for finances is needed to address who will handle your financial affairs while you are alive if you cannot do so on your own.
• A will does not avoid probate. Additional estate planning, such as joint titling of assets, or transfer on death deeds or a revocable or irrevocable trust will be needed, along with naming proper beneficiaries and coordinating assets with your estate plan.
• You want to protect assets from a nursing home and other long term Medicaid costs.

Some Family Situations Require More

The following type of family situations will normally require more than a simple will to accomplish a client’s goals:

• You have children outside of the marriage, if you are married. In other words one or both spouses have children that are not children of the other spouse.
• You and your spouse have property that is kept separate and that will not be distributed to your spouse at death, if you are married. For example in a second marriage where on the first to pass certain assets will not go to the surviving spouse.
• Distributions will not be made equally to your children.
• Certain assets, such as a house, will be given to certain children or a certain child and not shared equally by all of the children.
• Your children are younger and require a trust so that a trustee can manage a child’s inheritance, using it for such matters as the child’s education, support and health care needs.
• You have a disabled child, a child with financial problems, or a child who cannot handle money, thereby requiring a trust rather than passing the inheritance outright. A special needs trust, a trust for minor or younger children within the will, or a revocable trust maybe required to accomplish your goals.
• You have a number of specific bequests where you want to leave certain individuals or charities a sum of money or other property or monetary bequests.

Our Estate Planning Process Will Identify Preferred Solutions

In practice since 1958, we understand the finer points of proper estate planning. We have helped thousands of Wisconsin families with their estate planning needs. Over the years, we have come to treat estate planning as a process, where gathering information is just the beginning.

During conversations with our clients, we can identify and suggest preferred approaches to drafting the most suitable estate plan for you. Where appropriate, we will suggest a simple will. More often than not, we will suggest alternatives to a simple will and discuss  solutions to accomplish our clients’ goals as efficiently and as cost effectively as possible.

We invite your to contact us today to discuss the best approach for your estate planning needs.

* The Wisconsin intestacy laws apply where a person dies without a will, which is called dying “intestate”.