“Our own death is indeed unimaginable, and whenever we make the attempt to imagine it we can perceive that we really survive as spectators. Hence … at bottom no one believes in his own death, or to put the same thing in another way, in the unconscious every one of us is convinced of his own immortality” (Sigmund Freud, Our Attitude Towards Death, 1925).
Death, as Freud observed, is a hard subject for us to cope with and the notion of our own death is even more difficult for us. One of the hardest and most important “legal” events of our lives is the decision to make a will. It is a time when we must come to grips with our own mortality and plan for the future of our loved ones.
A will is a legal document in which a person declares to whom his/her possessions are to go after his/her death. It may also serve to provide for a guardian of minor children in the event that both parents die. In addition, a well drafted will can help save money in estate taxes. In order for a will to be valid under Wisconsin law, you must be of sound mind and at least eighteen years old when making a will. It must be in writing, it must be signed by the testator (the person making the will), and it must be signed by two or more witnesses in the presence of the testator and in the presence of each other. It is also important that the witnesses to the will should not be persons who will be beneficiaries under the will.
There is no requirement under the law that you have a will. Without a will, the rules under Chapter 852 of the Wisconsin Statutes govern the distribution of your property and possessions (see below). A will is important if you want to leave property, etc. to persons other than your spouse or immediate family. It also is necessary to provide for a guardian for any minor children you may have. Otherwise, the court and not you, will decide who will be the guardian of your children if the “unimaginable” were to occur. A will may also provide for the creation of a trust, under which certain property is held by a trustee for the benefit of someone else (usually a minor child or a spouse). The trustee is responsible for protecting the trust assets and paying out income from the trust to the beneficiaries. The trustee must also terminate the trust as the will provides.
In preparing to make a will, careful thought should be given as to who will be your personal representative (the person who will be in charge of administrating your estate), your trustee (either a bank or someone who will be good at managing the trust funds) and the guardian for your children. Alternative persons should be chosen in the event that someone is unable to serve. Once the will is drafted, it should be kept in a safe place and your personal representative should know where it is stored.
If the “unimaginable” happens and you are without a will, Chapter 852 of the Wisconsin Statutes governs the distribution of your estate. If your spouse survives you, she will receive the entire estate unless there are surviving children of yours who are not children of your surviving spouse. In that case your spouse will receive one half of the net estate (not including property the surviving spouse may be entitled to under the Marital Property Law) and the children will receive that share of the estate which does not go to the surviving spouse. If there is no surviving spouse then the children will receive the entire estate. If there is no surviving spouse or children (or grandchildren or great grandchildren) then the estate goes to your parents. If there is no surviving spouse, children (or their lineal descendants), or parent then the estate goes to your brothers and/or sisters and if you have no surviving brother and sister then the estate goes to the children of your brother or sister. If there is no surviving spouse, children, parent, brother or sister or children of your brother and sister then it goes to your grandparents. If there are no surviving grandparents then your estate would go to your next of kin. If there are no heirs at all, then your net estate would go to the State of Wisconsin, to be added to the capital of the school fund.