Making a Will: Beware of Common Mistakes to Avoid When Drafting Your Will in Wisconsin

A will, often known as a last will and testament, is a crucial component of your comprehensive estate plan. It determines who will care for your minor children, outlines the distribution of your property, and designates an executor to ensure your wishes are carried out upon your passing. While creating a will may seem straightforward, there are pitfalls to avoid to ensure its validity and effectiveness.

In this comprehensive guide, we’ll explore what you should and shouldn’t include in your will. We’ll cover various aspects of will creation, from property considerations to important provisions to steer clear of. Let’s dive in.

Making a Will: What to Avoid When Making a Will

1. Funeral Instructions

Don’t write out funeral instructions in your will. Typically, funeral planning begins before your family has access to your will. Instead, have a conversation with your loved ones about your funeral wishes or create a separate document outlining them. Share this document with a trusted family member or your will’s executor to ensure your wishes are known and followed promptly.

2. Certain Types of Property

Exclude certain types of property from your will. These include:

• Jointly held property: Ownership transfers automatically to the surviving owner upon your death.
• Assets with named beneficiaries: Life insurance, retirement accounts, stocks, bonds, and bank accounts with designated beneficiaries bypass your will.
• Property in a living trust: Property held in a living trust is managed by a trustee and distributed according to trust documents, not your will.

3. Care for a Relative with Special Needs

Avoid specifying care instructions for a relative with special needs in your will. Instead, consult an experienced estate planning attorney to establish a special needs trust. This trust ensures ongoing care and support for your loved one while safeguarding their eligibility for essential benefits.

4. Leaving Property to a Pet

You cannot leave property directly to a pet. Instead, designate a caregiver for your pet in your will and allocate funds or property to support your pet’s care. Alternatively, consider establishing a pet trust, adhering to your state’s specific requirements.

5. Attempting to Avoid Probate or Estate Tax

Don’t use your will to attempt to avoid probate or estate tax. Wills are subject to probate, a process where the court authenticates the document before your wishes can be executed. To avoid probate, consider creating a trust. Property outlined in wills may also be subject to estate tax, making trusts a more tax-efficient option.

6. Going It Alone

Avoid creating your will online without professional guidance. While online tools are available, they can lead to mistakes and an invalid document. Consult an experienced estate planning lawyer who can navigate potential pitfalls and ensure your will is legally sound.

What to Include When Making a Will

Types of Property Not to Include When Making a Will

Certain types of property have specific rules governing their distribution after your death. These rules operate independently of your will:

Joint Tenancy Property: Property held in joint tenancy automatically passes to the surviving joint tenant, regardless of your will’s provisions.

Property in a Living Trust: Assets included in a living trust bypass probate and are distributed according to the trust’s terms, not your will.

Life Insurance Proceeds with a Beneficiary Designation: Life insurance policies name beneficiaries who receive the proceeds directly, outside of your will.

Retirement Plan, Pension, IRA, or 401(K) Proceeds: These accounts have designated beneficiary forms, guiding their distribution upon your passing.

Stocks and Bonds Held “In Beneficiary”: Property held with a named beneficiary goes directly to that individual; consult your brokerage company to make changes.

Proceeds from a Payable-on-Death Bank Account: Designate beneficiaries for these accounts to facilitate a smooth transfer of assets.

Provisions Not to Include When Making a Will

Certain provisions should not be included in your will:

Conditional Gifts: Avoid adding conditions to gifts in your will, as some may be legally unenforceable. Conditions related to marriage, divorce, or religious affiliation should not be part of a will.

Care for a Person with Special Needs: Instead of including care instructions, create a special needs trust to provide for their well-being while preserving benefits eligibility.

Gifts to Pets: While you can’t leave property to pets, you can designate a caregiver and allocate funds for their care or establish a pet trust where legally applicable.

Tax Avoidance Provisions: Avoid attempting to use your will to circumvent estate taxes. Consult an estate planning attorney to explore tax-efficient options like trusts.

Illegal Provisions: Ensure your will does not contain illegal conditions or purposes for gifts, as courts will not uphold such provisions.

The Role of Your Will in Probate

Contrary to a common misconception, valid wills must go through probate proceedings. Your will expedites the probate process by outlining your property distribution preferences, providing clarity to your loved ones and the probate court. It ensures your wishes are followed, making probate smoother and less burdensome for your family.

Making a Will by Doing it Yourself

Estate planning is essential for peace of mind, and creating a will is a fundamental step. While some may have simple wills, it’s crucial to ensure your document is legally sound. You can easily create a will online using state-specific templates for a straightforward estate plan. However, for more complex estates or specific needs, consulting an experienced estate planning attorney is advisable.

Learn More About Estate Planning and Making a Will

For additional information on the estate planning process, consider these resources:

• University of Wisconsin Law School: Family Estate Planning in Wisconsin
• State Bar of Wisconsin: Wills & Estate Planning

Seek Professional Guidance When Making a Will

Making a will is a crucial step in securing the future for your loved ones. To avoid potential pitfalls and ensure your will accurately reflects your wishes, consult with an experienced estate planning lawyer. At Dahlberg Law Group, we’re here to help you navigate the intricacies of estate planning. Contact Attorney Steve Eichstaedt and our team for expert guidance tailored to your specific needs and circumstances.

FAQs about Making a Will

Q1: Can I include funeral instructions in making a will? A1: It’s not advisable to include funeral instructions in your will, as these arrangements typically occur before your will can be accessed. Instead, discuss your wishes with your loved ones or create a separate document outlining your funeral preferences.

Q2: Should I attempt to avoid probate in my will? A2: While wills are subject to probate, attempting to avoid it through a will is not recommended. Consider creating a trust for a more effective probate avoidance strategy.

Q3: Can I leave property to my pet when making a will? A3: You cannot leave property directly to a pet in your will. Instead, designate a caregiver for your pet and allocate funds or property to support their care. Pet trusts are also an option where legally applicable.

Q4: What should I do if I want to provide for a relative with special needs? A4: Your will is not the place to outline care instructions for a relative with special needs. Consult an estate planning attorney to establish a special needs trust, ensuring their care and benefits eligibility.

Q5: Is it possible to avoid estate taxes through my will? A5: Avoiding estate taxes through a will is not advisable. Consult an estate planning attorney to explore tax-efficient options, such as trusts, for estate tax reduction.

Q6: Can I write my own will online? A6: While online will creation tools are available, it’s essential to consult an experienced estate planning attorney for more complex estates or specific needs to ensure the validity of your document and avoid potential errors.