The Importance of Having a Will or Trust

By: Kathy Bach

People often procrastinate when it comes to preparing a Will, Trust or estate plan.  This can have devastating consequences especially in second marriages.  Here is the story that I heard this week. 

Mom moves in with Son and his Wife and they title the home in Mom and Son’s names only (first mistake).  Son and Wife pay all expenses including the mortgage for 12 years and take care of Mom.  Mom dies and then one month later Son dies.  They have no Wills or other estate planning documents (second mistake).  Wife now has to move out of the house because she is only going to get 3/8 of the value of the home under Wisconsin’s intestacy rules (the rules that are applied if there is no Will). Mom’s other son will get ¼ of the value of the home (even though he has done nothing to help Mom) and Son’s daughter from a prior marriage will get the other 3/8. 

This was not what Mom or Son wanted but unfortunately they kept putting off preparing documents that would actually accomplish their wishes. 

In a second marriage if you do not have a Will, in general state law provides that ½ of the assets pass to the surviving spouse and ½ of the assets pass to the children of the deceased spouse.

Wills are your instructions to the Court on how you want your assets distributed at death.  Assets passing by a Will do go through the Court probate process. In the Will you can also determine who will act as the personal representative (executor) of your estate.

We often recommend using a revocable trust as the main part of the estate plan. It serves the same purpose as a Will except that there is no Court involvement, the plan is private and there is no delay in executing the plan after death as there is with probate. 

Other important documents are Durable Financial Powers of Attorney and Health Care Powers of Attorney where you name individuals to handle your finances and/or health care decisions when you become incapacitated.  If you don’t have these documents, a guardianship proceeding through the Court is required which is very cumbersome and expensive. 

We are happy to help you put an estate plan in place so your wishes are fulfilled.