Wisconsin Law on Wills v. Revocable Trusts: Determining the Best Estate Planning Strategies for You and Your Family

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By Attorneys Isaiah M. Richie and Michael J. Keepman, Schloemer Law Firm, S.C.

Is a Will or a Trust right for your family? With so much uncertainty in the world today, families are increasingly concerned with ensuring that their children and other loved ones are protected in the event the worst happens. It is difficult to find a field of law that more adequately captures the phrase, “Fail to plan, plan to fail”. Allowing the state or probate court to determine who inherits your assets can have terrible unintended consequences. But due to the perceived complexity of developing an estate plan, many Wisconsinites put off the matter until it is too late. One of the most important steps in arranging your final affairs, therefore, is simply meeting with an experienced estate planning attorney.

“What is the difference between a Will and a Trust in Wisconsin?” This is the most common question clients have when they want to start their estate planning. In Wisconsin, both can be used to avoid probate, but Trusts are a more common and flexible way to avoid probate and name a Trustee to manage your affairs.

In this month’s edition, we’ll go in detail and try to explain the major differences between wills and revocable trusts in Wisconsin.

Will-Based Estate Plan

Other than having an estate plan in place, wills:

Distribution of Assets: Provide an opportunity to distribute assets to nearly anyone you wish upon your passing.
Prevention of Intestate Succession under Wisconsin Law.Prevent your assets from being distributed to relatives or others under rules of intestate succession, which may or not be what you intended.
Personal Representative and Guardian: Allow you to name a personal representative of your estate to handle your final financial affairs and name a specific guardian of any minor children. Otherwise, the court will appoint a personal representative or guardian, and you will have no say about who that individual is.
Trusts for Children. Can direct the personal representative to create a testamentary trust and appoint a trustee for the benefit of minor children. Assets are then distributed by the trustee when children reach a certain age determined by you.
Court Supervision.Wills, however, cannot typically be used to avoid probate. One of the biggest disadvantages of having only a will-based plan is it usually requires court supervision, often takes more time to administer than a trust, and generates fees payable to the state based on a percentage of distributed assets. Note, however, with a Will plan, there may be alternatives, such as Payable on Death, Transfer on Death, or other Beneficiary designation, that a Wisconsin estate planning attorney can discuss with you.

Revocable Trust Estate Plan

In addition to all the advantages of a will-based plan, revocable trusts have several additional benefits:

Probate Avoidance. Avoid the need for probate.
Privacy Benefit. Are generally not public records.
Creditor Protection. Offer beneficiaries’ protection from many creditors.
Access and Control. Allow the grantor (the person who established the trust), to have full access and control of the assets during their lifetime.
Special Needs Planning. Enables parents of children with special needs to preserve funds for the maintenance and enjoyment of the child, while preserving their access to much-needed public benefits.
In the event you are incapacitated or otherwise unable to administer your trust, a successor trustee can be appointed to manage the trust during your incapacity.
Flexibility and Customization. Provides the opportunity for much more flexibility and creativity than a will-based estate plan.
Will Contests. Trusts are also often used if there are concerns a beneficiary may try to challenge a Will, especially if a child is disinherited in Wisconsin.

Even with all the advantages, revocable trusts are not for everyone. Wisconsin law offers many excellent opportunities to transfer assets outside of probate. But these strategies must be in place to work. The experienced West Bend and Washington County estate planning attorneys at Schlomer Law Firm are here to assist you navigate these complex estate planning, and probate and trust administration issues.

The process is simple. Call our office to schedule an initial meeting with a Wisconsin estate planning attorney, who will walk you through the process (and provide you with answers to your estate planning questions).

If you have questions about whether a will or trust would be right for you and your family, or are looking for a Wisconsin elder law attorney, please reach out to this article’s author, Attorney Michael J. Keepman, at 262-334-3471 or [email protected], or one of our Estate Planning attorneys by contacting our office at [email protected] or 262-334-3471. Our Wisconsin elder law attorneys frequently provide legal services, including estate planning and probate and trust administration, to clients living in West Bend and the surrounding communities of Slinger, Germantown, Kewaskum, Port Washington, Menomonee Falls, Milwaukee, and throughout Washington County, Sheboygan County, Dodge County, Ozaukee County, Waukesha County, Wisconsin.

Originally published: September 20, 2023.