Does a Will Avoid Probate in Wisconsin?

In this video, Attorney Thomas B. Burton answers the following question:

"Does a Will Avoid Probate in Wisconsin?"


Attorney Burton discusses what creating your own Last Will and Testament in Wisconsin means and he discusses some things a Will accomplishes and other things it does not. One of the confusing aspects about this term "probate" is that many people mistakenly think that making a Will means they will avoid probate. Instead it is just the opposite. A Will ensures the assets passing under your Will=WILL go through the probate court process. Forming a Will in the State of Wisconsin is not enough on its own to avoid probate. There are multiple ways to avoid probate in Wisconsin, but you need to use other estate planning tools, such as a revocable living trust, also known as a revocable trust or a living trust to help you accomplish those goals. A Will alone is not enough to completely avoid the government run probate court system for most people.


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Hello, I'm Attorney Thomas Burton. I'm an estate planning and asset protection attorney here in Wisconsin and today's question is the following:

“Does a will avoid probate in Wisconsin?”


So this is an excellent question and I see this come up over and over, in my estate planning practice and my goal here, at my office is to educate and inform you so that you can take control of your own Estate Planning and these videos are part of that mission at my office.

So does a will avoid probate in Wisconsin, the short answer is ‘No’. In fact a will ensures, you will go through probate process. So if you think of the word ‘Will’, will means I will go through probate court process. If you choose a will plan as the primary method of passing your assets upon death, then by law, the will states, they must go through the probate court process.


Now, at my office, we often favor non-probate planning, meaning passing assets outside the probate court, in order to avoid the time, delay and expanse of probate and keep things private and the primary vehicle we do this, is through a trust.


But a will means you are acting under the statutes that’s been created for the probate court process. And probate court, is the court administered process to administer your estate and distribute the assets after you are gone, after your death. So if you want more about probate, watch a few of my other videos, on how that works but today, I wanted to focus on this fairly simple question, does a will avoid probate in Wisconsin? so what I tell my clients is that while it's always a good idea to create a will, if you have no will at all. I totally support people creating their own will, writing their own rules for the road, for what happens with their estate after they're gone. They can also pick a personal representative. Someone to administer the estate instead of having the court name one, and you can also name a guardian for minor children, but just be aware, a will alone does not avoid probate. To do that, you need to work with the lawyer to set up a trust and use other techniques depending on your mix of assets, to avoid probate and if you're interested in learning more about if a will or trust is right for you, check out, I will put a link in this video. I have a one-page guide that kind of walks you through the factors to consider. You can check that out after you are done watching this video.


However, think about this, if you have no will at all, you will go through the probate court process, by default. If you make a will, that's a good first step because you get to choose, set your own rules for the road, for what happens to your assets, after you're gone. You can choose your own executor, we call them ‘personal representative’ in Wisconsin and you can name a guardian for minor children and also specify who should receive your money. If you don't make a will at all, you fall under the default statutes, the Wisconsin statutes of intestacy, and they generally say, your assets will go to your next closet living relative and that may or may not be what you wish and it gets more complicated, if you have a blended family or multiple marriages where the intestacy statutes may not lineup with what you actually want to happen and for sure, if there's anyone in your family, you don't want to, to receive your money, you don’t want to fall under the default scheme because it's possible they could and it would be better to create a will and explicitly say, who you want, to receive your assets.


So, again, a will alone does not avoid probate in Wisconsin. if you want to do that, you should probably look at using a trust.


So great question and thank you for asking.

We will see you next time.


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