Legal Question in Wills and Trusts in Wisconsin

Re: Step to financial security

Any property in your (your husband�s) estate will go through probate and will pass under the terms of a will if he has one or under the laws of intestate succession if he does not have a will. Because there are children from a prior relationship those children will be entitled to a share of the estate if there is no will. If your husband has a will he can disinherit the children altogether or give the amount he chooses to give them rather than what the intestate law dictates.

To avoid probate your husband can create a revocable (living) trust and transfer his assets into it. OR by using non-probate conveyances he may be able to accomplish the same thing without a trust. For example if you own a home it can be titled in both names as survivorship marital property. Or even if it is titled in his name alone he can record a TOD (Transfer on Death)Deed such that the title will transfer to you when he dies. Then the home would go to you as the survivor regardless of what any will would say.

You can also hold all bank accounts jointly with the same rights of survivorship. Or, even if an account is just your husband�s name, he can set up the account as a POD (Pay on Death) account and the balance would go to you when he dies regardless of what any will would say. Incidentally you can also do that with broker accounts holding stocks and bonds.

Some assets will never be affected by a will, such as life insurance, annuities, IRAs. 401ks and other instruments that have beneficiary designations. These will all go to the named beneficiaries. So the corollary is that you have to make sure that these instruments have the right beneficiaries set up. His children might be the named beneficiaries and Your husband may not even realize it.

Often, depending on the amount of assets, one can use these devices to reduce the amount of probate assets to under $50,000. If that is the case these other assets can be transferred by an inexpensive affidavit procedure without probate. Be wary though, you would still need a will that names you as the heir as the affidavit procedure will follow the rules of intestate succession if there is no will.

The bottom line is that he should always have a will but then try to use these other non-probate devices to eliminate probate on most (or almost all) assets.