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Last Will and Testament
Probate is a term familiar to any individual or family that has dealt with the loss of a loved one and the disposition of his or her estate and its assets. The word “probate” comes from the Latin word probare, meaning “to prove,” and involves the legal methods by which the deceased’s final wishes regarding his or her worldly possessions can be proven in a court of law.
While it may sound simple in concept, probate in Wisconsin is a process that can last up to 18 months, employ numerous lawyers, and cost grieving family members thousands of dollars, not to mention creating lasting enmity among those vying for the more valuable assets within the deceased’s estate. (“Why do I only get Mother’s collection of beach hats, while Mr. Boots—who’s a cat—gets her entire seaside estate?”)
Things can get pretty ugly, but there are both legal ways and practical reasons to avoid probate. In addition to being less expensive, sidestepping probate usually means fewer difficulties overall, fewer process delays, which anyone who’s been involved in legal proceedings knows to be true, and the ability to maintain privacy. Once court proceedings begin, the matter becomes part of the public record, giving anyone the ability to review the assets and learn the deceased’s—and maybe the litigants’—financial worth and asset disposition.
Preemptive Planning
An estate attorney still needs to be involved, but preemptive planning prior to the ultimate event can make the transition of after-death assets much smoother. A legally drawn will is a start, but it’s by no means the end. Here are some ideas for you to consider.
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First and foremost, the estate owner should assign powers of attorney to trusted individuals both for healthcare and finances. If the person then dies intestate, or even merely without designation of someone to make decisions in these areas on their behalf, the dispensation of assets after death will be left to some other relative and/or the courts. There’s no guarantee either will act in the deceased’s best interest.
Consider creating a living trust, the step beyond a will, that as a legal entity, becomes the owner of the assets. You will need to name first and perhaps second trustees, but the terms outlined within the trust, and not the courts, will be the engine that disburses those assets.
Specificity helps in the case of asset disposition and naming specific beneficiaries for specific assets—in addition to or even instead of creating a living trust—goes a long way in clearing up confusion, especially if you leave Mr. Boots out of the proceedings entirely.
The documents also can name payable-on-death beneficiaries who will receive liquid assets like cash and stocks when the named person dies. Once again, specificity comes into play and there can be little confusion if the assets are directly transferred to a specific recipient. For real estate, transfer-on-death deeds operate much the same way, in both cases bypassing the need for court intervention.
For estates worth less than $100,000, the named parties may be able to follow small-estate proceedings and transfer assets directly to heirs without going through the courts. But be sure to consult an estate attorney before proceeding to make sure the estate qualifies. Ignorance of the law is, of course, no excuse, and even Mr. Boots knows that.
