Estate Planning

What is Estate Planning?

"Estate Planning"is a process by which one makes plans for the things important to him or her after death. For example, if you have minor children, part of your estate plan would be the recommendation to the Court of a specific person to act as Guardian to care for your minor children during their minority. In the absence of an estate plan, the Court would determine, without your recommendation, who would care for your children. For some this is an alarming revelation. For those without children, your estate plan would indicate who receives your worldly possessions after your passing.

Is a Last Will and Testament an important part of an Estate Plan?

Absolutely! Regardless of how formal or informal or estate plan is, it is important that it incorporate a Last Will and Testament to address any assets which don't have a designated beneficiary, that aren't jointly held or in the event of the existence trust, held in the name of the trust.

What is a Trust?

A trust is a legal receptacle which retains ownership of your various assets so that at the time of your passing there is no requirement for a probate proceeding. While the avoidance of probate is the prime reason that many people execute trusts, a trust has far greater benefits which may be appropriate to your specific situation such as greater flexibility in the distribution of assets, privacy, and tax savings.

What is probate?

Probate is a process by which the Court oversees the implementation of the directions incorporated into your Last Will and Testament.  In the State of Wisconsin, this process can last up to 18 months and can depending on your specific circumstances cost several thousand dollars in attorneys fees.

What happens if I die without a Last Will and Testament?

If you die without a Will, you are deemed to die "intestate." This essentially means that the Court has not been given any direction as to who should care for your children and/or who should receive your assets that are held individually in your name and which don't have a designated beneficiary. In this event, the Court will follow the statutory guidelines more commonly referred to as "intestate sucession" to determine who receives what, when, where and how much. It can certainly be argued that this is never an optimal situation as assets may be received by the wrong parties, in the wrong amounts, or at the wrong time. Further, if you die intestate the court will almost always require the personal representative (sometimes referred to as the executor) to post a bond. The bond is nothing more than an insurance policy guaranteeing the beneficiaries that the personal representative will not flee with their assets. This insurance policy is not free and almost always costs more than a Last Will and Testament

Further the Court is limited as far as who will act as personal representative as not everyone will be able to post a fiduciary bond as a result of bankruptcies, lack of credit or poor credit.

Additional administration expenses and the uncertainties as to who may end up with your assets can be avoided by having a Will. REMEMBER: It is ALWAYS better to have a Will and not need one than NOT have a Will and have the State dictate who will get what!

I currently have very little assets outside of those which have named beneficiaries... Do I Still Need a Will?

Yes. Even though the use of beneficiaries is a necessary part of a prudent estate plan, usage of beneficiary designations have several negative side effects such as circumventing  testamentary trusts which would otherwise benefit minors or those with special needs. Further, while you might look at your current financial situation as a snapshot and say "I don't have enough money to justify doing a will", no one knows how their finances will change between today's date and the date of your death. You may be a person of modest means, but your estate may have significant funds as result of the manner of your death.

Can I avoid the necessity of a Will simply by utilizing beneficiary designations on everything that I have?

No. You can't put a beneficiary designation on everything. While prudent usage of beneficiary designations can often decrease and potentially eliminate the likelihood that a Probate proceeding will be necessary at the time of death, you can't put a beneficiary designation on a claim that has not yet occurred- i.e. a death resulting from medical malpractice or a car accident where the other driver was negligent. You also can't put a beneficiary designation on personal property, cars, home furnishings, etc.

Should I Use a Simple Will?

That is a decision that's best made with the assistance of a lawyer. All estate planning is not the same as all people are not the same. The existence of children, requested distributions of assets, family dynamics, family members or friends with special needs, costs, the desire for privacy, the availability of other assets and the existence of the federal and state estate tax will all play into what kind of estate plan is right for you.

Should I Consider A Will...What if I already have one?

If you have not yet made a Will, you should do so now. A Will insures that the friends, family or organizations that you (not the State of Wisconsin) actually choose receive the items or assets you want him, her or them to receive an efficient and cost-effective way.

Additionally, it is always good to have your estate plan reviewed periodically. Estate planning and the Law as a whole is always evolving and changing. You should review your estate planning every two to three years to determine if changes need to be made due to changes in the law or your specific situation. At Drosen, Wandt and Rustad we are happy to schedule a meeting with you FREE OF CHARGE to determine if your current estate plan is right for you.


Schmidlkofer, Toth, Loeb & Drosen, LLC
949 Glenview Ave.
Wauwatosa, WI, 53213
Phone: 414-259-9300
Fax: 414-259-9303
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We represent people throughout southeast Wisconsin, including Milwaukee, Waukesha, Brookfield, New Berlin, Pewaukee, Delafield, Menomonee Falls, Germantown, West Allis and Wauwatosa; and in Milwaukee County, Waukesha County, Washington County and Ozaukee County.