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Witness and Execution Requirements for Wisconsin Estate Planning Documents

Updated: Apr 10, 2020

The State Bar of Wisconsin Real Property, Probate and Trust (RPPT) Section, of which Attorney Thomas B. Burton is a member, has developed a list of execution requirements for estate planning and other documents to be valid in Wisconsin. The State Bar of Wisconsin shared this list of estate planning documents along with the execution requirements for each on their Coronavirus & the Law Blog. I have included an excerpt from this article on the execution requirements for Wills and Trusts in the state of Wisconsin below. Thank you to the hard working members of the RPPT Section for putting together this great resource!

You will see that executing a Will requires significantly more formalities, than forming a trust. Therefore, during this crisis, using a Trust to bypass probate may be a very good option for many individuals, if they are unable to get a Will executed according to the proper requirements. My office is offering Drive-Thru Will, Power of Attorney and Health Care Power of Attorney signings during this time, on a case-by-case basis. You can learn more about this service in this post on Drive-Thru Will Signings at Burton Law LLC.

You can read the entire article from the State Bar of Wisconsin here. If you have questions about any of these documents, or would like to discuss with my office how to properly draft and execute any of these documents during the Coronavirus crisis, or at any time in the future, please contact my office, or book an appointment online.

Transcript of Video: Execution and Witness Requirements for Wisconsin Estate Planning Documents

Welcome back this is Attorney Thomas Burton and today's video is about the execution requirements what is legally required to execute various estate planning documents in the state of Wisconsin. So this week the real property and probate section of the Wisconsin State Bar of which I'm a member put out a handy reference guide for attorneys on what's required on the Coronavirus and the law blog on what's required for each document. That a client may want to execute in the state of Wisconsin. So if you watch some of my other videos I talked about the execution requirement for a will where you need to witnesses and there's different requirements for power of attorney, but this has exactly the requirements for each document and I've created a post on my blog and I'll put this video there as well and it links to that chart from the state bar and they put in this handy chart and I'm just gonna go through it and discuss with you what's required for each one. So you know some of your options during the Coronavirus Crisis, if you're looking at doing your estate planning. So we'll start with the first one a marital property agreement and there's a variety of things you can do if you're married in Wisconsin with the marital property agreement including some advanced estate planning techniques to avoid probate. So talk to your attorney about that, but to create it no witnesses are required to create and no notarization is required to create. So there's one document right there that if you work with an attorney to prepare you could sign without leaving your home, you don't need a witness you don't need a notary. Now the next one is a will and if you've watched my other videos, you know the will you need two disinterested witnesses and to create it the document must be signed by the testator so that's you if you're creating the will or by the testator with the assistance of another person with the testator's consent. So that would be you if you're physically unable someone could help you sign the testator's name by another person at the testator's direction and in their conscious presence. So this would be you direct another person to sign for you but they're right there in the room with you. So that's the way to sign to create the document must be signed witnessed signed by at least two disinterested witnesses who are in the conscious presence of the testator when the testator signs or when someone with the testators consent or direction signs. So those methods we talk. About you sign someone helps you sign you direct someone to sign the witnesses need to be there during that happening. Okay so this conscious presence test the will is the trickiest one because we need the witnesses there witnessing you within conscious presence meaning there with you can see you doing it, so that's where some of us lawyers are doing witnessing outside to a car window but it's not gonna work via video okay and you want the witnesses there notarization is not required to create unless you do a self-proving affidavit, so don't worry about notarization is the two witnesses you need for a, Will so the will is the trickiest one but just keepin your head two witnesses. I need disinterested witnesses now let's move on to trust know witnesses are required to create a trust and no notarization is required to create so in the statute you don't need either now when you do it at my office normally I notarize your signature on the trust because banks and a lot of institutions like to see that later and that's just a common practice we do here best practice but legally it's not required so if you're in a situation where you don't want to leave the house or can't right now talk to my office or another attorney about possibly creating a trust to avoid probate on your assets and then you can have all the assets pass under the trust and not under the will because if you're sick right now or alone and you can't get the witnesses in we need to look at some other options and even if you do a will avoiding probate is a great idea, so that's Wisconsin statutes 701.0402, just remember no witnesses are required under the Wisconsin Trust code and no notarization. Again a trust certificate which is a short form of the trust often provided to banks and such no witnesses are required no notarization is required and my office commonly puts together these trust certificates as well next a durable power of attorney for finances, which is very important to name an agent if you're incapacitated to create no witnesses are required if signed by the principal so you are the principal again, you don't need a witnesses to create it, however the principal signature Is presumed genuine if acknowledged by a notary public so generally again banks look for that so at my office best practice, we will notarize your signature, however, if you're in this crisis and need to get it done you could sign it now have a valid power of attorney and when things get better you could go acknowledge it in front of a notary public if you want to do that extra step next health care power of attorney, this is similar to a will to create two witnesses required who are in the presence of the principal when the principal or someone expressly directed by the principal signs and dates. So I think of it the same way as the will. You need those two disinterested witnesses and they can't be healthcare providers, so this is why I tell people don't wait till you're in the hospital to do one of these. It becomes a lot harder to find those witnesses. Okay, living will to create two witnesses are required who in the presence of the declarant when the declarant or someone expressly directed by the declarant and signs and dates. So, it's very similar to the health care power of attorney and at my office we often do these documents together. So again, we need two witnesses for that one. No notarization required. Authorization for final disposition this is what happens to your body or earthly remains and you choose cremation or burial. Again to create two witnesses or a notary public are required in the presence of the declarant when the declarant or someone expressly directed by the declarant signs and dates. So this one's an option and at my office a lot of times, I'll notarize it for people. So you either use the two witnesses or a notary but I would not worry about this document as much. It's a good thing to have in place but the ones. If you have nothing in place you want to get that financial power of attorney, health care power of attorney, and a will in place or a trust to avoid probate. You can also create a HIPAA release to release your medical records no witnesses are required and no notarization are required. So that's another one you could do today. And if you're working with my office or another attorney, we'd be happy to draft the documents well I know my office would and we would send them to you could print them out sign them today. So that's how short rundown of what's required Each document is a little different and that's why when you work with my office and come in I help you guide you through signing all of them but keep in mind there's a few good documents in there that you could execute on your own without any witnesses or a notary and that includes a trust and a financial power attorney. Some of the other ones like a will, a health care power attorney, living will you're going to need the two witnesses. So if you have nothing in place and you want to work with my office to get some in place we can do a combination of having you sign the ones you can at home and then if there's some you need to have witnessed in person we can do the drive-through will signing where you come and we witness you sign them in our conscious presence at a safe social distance of six feet through the car windows. So again, check out my blog with the execution requirements for different documents in Wisconsin. I hope this has been helpful to you. Thanks for watching. Stay safe. Be well and we'll see you next time.

© 2020 Burton Law LLC. All Rights Reserved.

Transcript and captions provided for ease of access for the hearing impaired.

For questions about this topic, or to suggest a topic for a future blog post, please contact my office.

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