Creating a will does not avoid probate! The opposite is actually true: A will is a document that speaks directly to a probate court. Probate is the legal process of transferring assets from your estate to your heirs. This process is required whenever a death occurs and there is no other mechanism that automatically transfers the assets. Those mechanisms can include beneficiary designations, “transfer on death” or “payable on death” designations, and marital property laws, to name a few. In Wisconsin, if you have $50,000 or more of assets that don’t automatically transfer through such a mechanism, probate will be required.
So what’s so bad about that? Probate has been described as “a lawsuit that you file against yourself for the benefit of your creditors”. Even the most straightforward of estates can become cumbersome to the family and /or personal representatives during this process. And, of course, the probate court charges a fee based on the value of the asset that are transferred. AND, it’s a public court process so your creditors, or your kids’ creditors, or Nosy Neighbor Nelly can see who gets what when all is said and done.
Having said that, a will is better than nothing, since at least it provides direction to your loved ones about guardianship for your kids and where you want things distributed when you die. Otherwise, the court gets to pick. Also, there are lots of opportunities these days to use designations like the ones mentioned above to keep many assets from going through the probate process.
If probate doesn’t sound like much fun to you, there are common ways to avoid it, like setting up a revocable living trust and funding it with your property.
Bottom line: Get something in writing and make sure you know how/if it’s all going to work when you’re gone. It’s pretty simple to do, and it takes a big burden off your loved ones.
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